High Court dismisses asylum applicant's judicial review for failing to challenge refoulement grounds or submit new evidence.

[2019] IEHC 489

THE HIGH COURT

JUDICIAL REVIEW

[2018 No. 839 J.R.]

BETWEEN

M.N. (MALAWI)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of June, 2019

1. The applicant applied for asylum on 14th June, 2016. He failed to attend for interview on two occasions and the Refugee

Applications Commissioner deemed his application to have been withdrawn. He then provided an explanation for his non-attendance

and was given a new interview date which fell after the commencement of the International Protection Act 2015. He then made an

application for subsidiary protection under that Act on 6th February, 2017. His protection claim was refused by the International

Protection Office on 15th May, 2017.

2. On 19th May, 2017, the IPO issued an examination of file under s. 49(3) of the 2015 Act, which refused the applicant permission to

remain and considered that the prohibition of refoulement in s. 50 of the 2015 Act did not preclude the applicant’s return to Malawi.

It also referred to “country of origin information (Appendix A)”, although the version of the decision given to the applicant did not

contain an Appendix A (which was, in fact, an extract from the 2016 US State Department Report on Malawi published on 3rd March,

2017). The applicant did not query the absence of Appendix A or take any steps whatsoever to go looking for it, even by writing a

letter. In any event, it has subsequently been furnished and is exhibited: see exhibit GK1 to the affidavit of Grainne Keane and PS1 to

the affidavit of Phillip Sullivan.

3. The applicant appealed the refusal of protection to the International Protection Appeals Tribunal on 8th June, 2017. That appeal

was rejected on 19th July, 2018. It was then open to the applicant to make a submission seeking a review of the refusal of permission

to remain under s. 49(9) of the 2015 Act, and in particular it was open to him to make any submissions regarding any further

information going to the risk of refoulement. In fact, the applicant made no submission whatsoever under s. 49(9), thus passing up

the opportunity for a review under s. 49(7). He made no submissions in relation to s. 50 of the 2015 Act either.

4. On 14th August, 2018, the IPO issued a document which is headed “Review under section 49(7) of the International Protection Act

2015”. That document notes that no further information had been submitted by the applicant and thus no further consideration was

required under s. 49(7). It also noted that no additional relevant information had been submitted in respect of any change of

circumstances concerning the prohibition of refoulement and it set out the Minister’s view having regard to “all the circumstances of

the case and relevant country of origin information” that such information did not indicate that refoulement would arise.

5. This decision was then notified to the applicant by letter of 24th August, 2018. That letter advised the applicant of the option of

returning voluntarily to Malawi and stated that if he did not promptly inform the Minister of his wish to take that option, a deportation

order would be made. No such indication was given and accordingly a deportation order was made on 7th September, 2018, which

was served under cover of a letter dated 28th September, 2018. That required the applicant to leave the State on or before 28th

October, 2018 or to present for removal on 31st October, 2018.

6. Leave in the present proceedings was granted on 29th January, 2019, the primary relief sought being certiorari of “the review

decision of the First Named Respondent made under section 49(7) of the International Protection Act 2015 (the ‘Act’) dated 14th

August, 2018” and of the deportation order dated 7th September, 2018. A statement of opposition was filed on 5th April, 2019 and I

have now received helpful submissions from Mr. Eamonn Dornan B.L., for the applicant and from Mr. Daniel Donnelly B.L., for the

respondents.

What is the decision of 14th August, 2018 and was it necessary?

7. The decision of 14th August, 2018 is headed as a review under s. 49(7) but that sub-section only applies “upon receiving

information from an applicant in accordance with subsection (9)”. That is a jurisdictional requirement and, because no such

information was provided in the present case, the document of 14th August, 2018 is not in law a decision under s. 49(7) as its

heading states.

8. What it is, having regard to the affidavit of Mr. Sullivan, is firstly a record of the fact that a review is not being carried out under

s. 49(7). It is not absolutely necessary to record that in a formal decision because that is simply a fact that arises from the absence

of a submission being made by the applicant. Secondly, it is a record that the Minister remained of the view that the repatriation of

the applicant would not contravene s. 50. Is that a necessary step? It seems appropriate in this context. The time to make the

definitive s. 50 determination is at the time of the making of the deportation order itself.

9. Mr. Donnelly submits that s. 50 involves a prohibition rather than an obligation to make a decision. It is in one sense true that s. 50

is an ongoing prohibition but where an obligation to make a decision comes in is that the section is referenced in the terms of the

deportation order itself. A “record” such as that of the document of 14th August, 2018, is simply the record of the reasons for the s.

50 decision which is inherently made by reason of the making of the deportation order.

10. It could be argued that, strictly speaking, the general rule might be that decision-maker does not have to state reasons unless he

or she is requested to do so. But in the specific context of deportation orders, s. 51(3) of the 2015 Act requires that the applicant be

notified of the reasons for the order, so in this instance there is a specific requirement for the reasons. The so-called review decision

was, in reality, the records of those reasons as far as the s. 50 consideration was concerned.

11. Thus, the decision was appropriate although mis-headed. An appropriate heading might be something along the lines of

“Consideration of s. 50 of International Protection Act 2015”. However, the document is certainly not invalid on the grounds of the

heading alone. Indeed, more generally, the appropriate heading for review decisions might possibly be something along the lines of

“Review under s. 49(7) of the International Protection Act 2015 and consideration of s. 50 of the Act”. However, again, I would make

the point that it would trivialise judicial review to quash a decision simply because there is some infelicity in the drafting of a heading.

Alleged failure to have regard to all circumstances and relevant country material

12. Ground 1(i) alleges that “in making the impugned decision, the Respondent, his servants and agents, erred in law and/or fettered

his discretion and/or engaged in unfairness in the consideration of the prohibition of refoulement and the manner in which the review

was conducted under Section 50 of the Act. (i) in forming his opinion under s. 50(2) of the Act that there was no threat to the

Applicant’s life or freedom for Convention reasons, and no risk to him of serious harm, the respondent failed to have regard to all

the circumstances of the case and in particular to relevant country of origin information.”

13. The fundamental stumbling-block for the applicant here is that the decision-maker says that all relevant information was

considered. As Hardiman J. put it in G.K. v. Minister for Justice and Equality [2002] 2 I.R. 418 at pp. 426 – 427: “a person claiming

that a decision making authority has, contrary to its express statement, ignored representations which it has received must

produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case.” The applicant has

not done so here.

14. Mr. Donnelly in written submissions pithily notes at para. 22 that: “this statement has been followed and applied innumerable

times”, citing in particular C.M. v. Minister for Justice and Equality [2018] IEHC 217 [2018] 4 JIC 2501 (Unreported, High Court, 25th

April, 2018) at para. 7 and A.W.K. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 550 [2018] 9 JIC 2506 (Unreported, High

Court, 25th September, 2018) at para. 10. As Mr. Donnelly puts it in oral submissions “one doesn’t begin from the assumption that

the Minister has failed to comply with a statutory obligation”.

15. The applicant makes complaint that “the impugned decision does not disclose any country of origin information which had been

considered” (written submissions, para. 16). But that information does not have to be disclosed in the sense argued, that is of being

listed in extenso. The material considered simply has to be ascertainable on judicial review and there is nothing to demonstrate that

the material before the Minister in this case was not ascertainable.

16. The tribunal decision says that country material was considered, particular items are identified and the items that are more

generally referred to were certainly ascertainable had anybody taken any steps to request them.

17. Apart from the foregoing, there are two further independent grounds why the application must fail. Firstly, the applicant never

sought clarification of what country material was considered. Had that been sought that would have been readily provided.

Clarification has since been provided: see para. 6 of the affidavit of Mr. Sullivan.

18. Secondly, and most fundamentally of all, the applicant failed to make any submissions following the refusal of international

protection. He certainly cannot get certiorari of the deportation order and the underlying s. 50 decision on a ground that he never

sought to advance: see Lingurar v. Minister for Justice and Equality [2018] IEHC 96 [2018] 2 JIC 0808 (Unreported, High Court, 8th

February 2018) at para. 9 which refers to the point made by Cooke J. in I.S.O.F. v. Minister for Justice, Equality and Law Reform

[2010] IEHC 457 (Unreported, High Court, 17th December, 2010) that the context for judicial review must begin with the actual

submission made.

19. Thus, the present case is fundamentally distinct on a number of grounds from the case on which the applicant majors, K.A.

(Ghana) v. Minister for Justice and Equality [2018] IEHC 511 [2018] 9 JIC 1703 (Unreported, High Court, 17th September, 2018). In

that case, the applicant did make submissions under s. 49(9) (see para. 2). Reliance was also placed on H.A.A. v. Minister for Justice

and Equality [2018] IEHC 34 [2018] 1 JIC 2303 (Unreported, High Court, 23rd January 2018), but there is nothing in that judgment to

suggest that no submissions were made by the applicant.

Alleged failure to disclose what country material was considered

20. Ground 1(ii) complains that “the Respondent erred in stating that ‘…the country of origin information does not indicate that the

life or freedom of the applicant would be threatened…” etc. The impugned decision does not disclose any country of origin

information which had been considered by the respondent.”

21. As noted above, the Minister is not required to list particular items of country of origin information considered. The actual

information considered was readily ascertainable at all times and clearly referable to the material on file. As noted above, further

clarification has been provided by Mr. Sullivan.

22. The argument is made in oral submissions that giving the “reasons” under s. 51(3) of the 2015 Act means listing all the country

information considered. But that is not so. The requirement is that reasons be given. Those reasons must be ascertainable, but listing

all discrete matters, documents or country material in extenso is an entirely separate matter and is not part of the statutory

obligation. Anyway, s. 51(3) is not pleaded, so the applicant cannot succeed under that heading.

23. Furthermore, independently of the foregoing, in the absence of submissions under s. 49(9) and in the absence of having sought

particulars of what country information was considered the applicant cannot succeed on this ground.

Alleged non-entitlement to rely on the IPAT decision

24. Ground 1(iii) contends that “the Respondent may not rely on the decision of the International Protection Appeals Tribunal (‘IPAT’)

in arriving at his opinion on non-refoulement. The IPAT denied the applicant’s appeal on credibility grounds and lack of

documentation. The IPAT decision does not disclose that any country of origin information was considered in denying the appeal.”

25. The premise of this ground is not correct. The IPAT decision does disclose that the country of origin information was considered,

although in fairness to the applicant, it does not list that information in extenso (see para. 2.3 of the decision). If there was any

doubt about what was before the tribunal that could have been readily obtained from the file.

26. More broadly, it is certainly not correct to say that the Minister, in making a deportation order or refusing permission to remain,

cannot rely on protection decisions including IPAT decisions. A deportation order is the end-stage of a lengthy process of carefully

calibrated steps. It is clear that any decision-maker can consider appropriately what happened during previous steps.

27. Mr. Dornan draws attention to the comments made in John Stanley’s textbook, Immigration and Citizenship Law (Dublin, 2017) p.

350, in terms of the lack of specificity of the wording of s. 50, a matter that is further discussed at some length in an article by

Siobhán Stack S.C., “New Rules for Refugees” 2017, 22(1) Bar Review 15. In that article, Ms. Stack states that: “It is the view of the

writer that, logically, no risk of refoulement exists where an application for international protection has either not been made or has

been made unsuccessfully, and where no s. 22 application is under consideration. While Meadows requires the Minister to satisfy

herself that the risk does not exist, it does not consider whether this might be done by simply adopting the final decision on the

application for refugee status and, indeed, the confirmation in the judgment that the procedures applicable to the Minister’s

consideration are extremely limited suggests that such an argument would succeed. Such a finding would be consistent with the

generally applicable nature of the qualifying phrase in s. 3: for many of the classes of person to whom s. 3(2) of the 1999 Act

applies, the question of refoulement does not arise. It would therefore be strange if an express consideration of the principle was

always required, and to derive such an obligation from the qualifying phrase in s. 3 would be bordering on the absurd. This

opportunity to remove what appears to be an unnecessary additional consideration has now been missed, as s. 50 applies to ‘a

person who is, or was, an applicant’. Failed applicants, to whom the principle generally has no application, are therefore included

and, in practice, will be its primary beneficiaries.”

28. She goes on to say that: “Moreover, s. 50 seems to undermine the argument that the application of the principle of non-

refoulement can be determined by reference to the outcome of the application for international protection, as s. 50(2) contains

specific provisions for what must be considered by the Minister and these are stated to be the information submitted in the course

of the application for international protection, and any further information that might be submitted relating to a change of

circumstances. For some reason, the international protection recommendation and any decision of the IPAT on appeal are not

included as matters to which the Minister ‘shall have regard’, nor is there any general provision permitting the consideration of any

relevant matter. This looks very like a wasteful obligation to reconsider the whole matter, which is arguably inconsistent with

Meadows, although it is possible that the section would be interpreted purposively to include those decisions as relevant

considerations.”

29. In relation to those concerns, one can say as follows. Firstly, s. 50 does not require a de novo reconsideration of all matters at

this stage of making the deportation order. The Minister can consider all of the relevant circumstances of the case. That is implicit,

and by definition that must include the decisions or recommendations of the IPO and IPAT. It is open to the Minister to in effect

adopt the reasoning and conclusions of a protection decision for the purposes of the deportation order, and indeed, this is normally

implicit in the Minister’s decision-making. Furthermore, in particular, the outcome of the refoulement consideration can normally be

determined by reference to the outcome of the protection claim, unless exceptional circumstances arise such as the application of

the exclusion clause or anything distinctly new or additional presented such as to persuade the Minister otherwise: see the point

made in Meadows v. Minister for Justice and Equality [2010] IESC 3 [2010] 2 I.R. 701 at 731 per Murray C.J., citing Baby O v.

Minister, Equality and Law Reform [2002] IESC 44 [2002] 2 I.R. 169 at 193, to the effect that if the applicant did not make

submissions regarding refoulement, the decision “would have been one of form only and not required any rationale”. That clearly

implies that it is not necessary to reconsider the matters de novo and that there is an entitlement to rely on previous rejections.

30. In the present case, Mr. Sullivan adopted that approach and “had regard to and followed the decision of the IPAT” (see para. 6 of

his affidavit). That was a lawful approach. He also specifies the particular country information he considered.

Alleged non-compliance with s. 50

31. Ground 2 contends that “in making the Deportation Order, the Respondent erred in asserting that there had been compliance

with the provisions of section 50 (prohibition of refoulement) of the International Protection Act 2015”.

32. That is not a ground for judicial review as such in that it does not specify any legally cognizable error of any particular kind. But in

any event, the complaint has no basis because no error in compliance with s. 50 has been demonstrated.

33. Mr. Dornan did say in oral submissions that ground 2 is derivative on ground 1 and that the reason for a lack of proper s. 50

consideration was the lack of a proper consideration of country material. However, because country material was properly considered,

ground 2 also fails.

Order

34. As noted above, the applicant failed to submit information triggering s. 49(9), did not allege any change of circumstances in

Malawi relevant to refoulement, did not inform the Minister of any such change, made no attempt to identify or request what country

material was considered at any stage of the process and made no attempt to seek reasons for any of the decisions at an earlier

stage of the process. Those features of the present case are fatal to the claim for relief against the decisions challenged here. But

even if they were not, the complaints fail on their own merits.

35. Accordingly, the order will be:

(i) that the proceedings be dismissed; and

(ii) that the respondent be discharged from his undertaking not to deport the applicant.