High Court dismisses judicial review application against deportation orders and refusal of subsidiary protection in Ireland.

Neutral Citation Number: [2011] IEHC 165

THE HIGH COURT

JUDICIAL REVIEW

2010 1336 JR

BETWEEN

O. O. AND B. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O. O.)

APPLICANTS

AND

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

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered the 16th day of March 2011

1. As originally constituted this proceeding was brought to seek judicial review of two decisions made by the respondent Minister. An

order of certiorari was sought quashing his decision to make deportation orders in respect of the applicants on the 5th October, 2010

and a further order to quash his decision to refuse subsidiary protection to the second named applicant on the 23rd September, 2010.

The matter comes before the Court on the application for leave to apply for those reliefs together with the other reliefs originally set

forth in the notice of motion dated the 19th October, 2010.

2. Shortly before the application for leave was listed for hearing, a notice of motion on behalf of the first named applicant dated the

1st March, 2011, was issued seeking leave of the Court to amend the statement of grounds in order to include two additional reliefs,

namely, an order of certiorari quashing a decision by the respondent on the 8th February, 2011, refusing to revoke the deportation

orders and, secondly, a declaration that “the common law rules governing the remedy of judicial review in circumstances where no full

appeal of the decision of the respondent is available, are contrary” to certain Articles of the Constitution. When this notice of motion

was listed on the 7th March, 2011, the Court adjourned it until the hearing of the leave application on the following day.

3. Having heard the submissions of the parties in relation to the motion to amend the statement of grounds, the Court decided, in the

interest of the economy of proceedings, to allow an amendment of the statement of grounds for the purpose of adding the claim to

relief by way of order of certiorari in respect of the decision under s. 3(11) of the Act of 1999, together with the grounds set out in

the draft amended statement numbered (after the Court’s renumbering of unnumbered paragraphs) set out at paragraphs 1B, 1C, 1D,

1E, 1G, and 1H. (Ground 1A is not a ground but an introduction and ground 1F is a variation on 1E.) The Court decided to postpone

consideration of the amendments to the reliefs and grounds relating to the proposed claim that the common law rules governing the

remedy of judicial review were unconstitutional. There were two reasons for the Court’s ruling. First, it appeared to the Court to be

premature and possibly wasteful to consider an application in a judicial review proceeding to the effect that the judicial review

proceeding did not provide an effective remedy prior to any decision being made as to whether substantial ground had been raised as

to why the impugned ought to quashed by certiorari. Secondly, the Court was informed that the substantive issue in that regard was

already under consideration in other cases already at hearing in the High Court.

4. In many cases the introduction of an application to revoke a deportation order under s. 3(11) of the Act of 1999, necessarily

implies an acceptance on the part of the applicant that there exists a valid deportation which requires to be revoked. In such cases

the Court would normally insist that the applicant choose between the contradictory reliefs and abandon the claim to quash the

deportation decision in order to pursue the application to quash the refusal of revocation. In this case, however, the Court’s

acceptance of the amendment directed at the revocation decision is explained by the chronology. Following the failure of an asylum

application on behalf of both mother and son, a letter of the 15th February, 2007, was sent to the mother by the Minister notifying

her of his proposal to make a deportation order and outlining the three options available, including the possibility of applying for

subsidiary protection and/or making representations to remain temporarily in the State. The letter explained that in the event of this

last option being taken:

“The Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary

protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of the

three years). If this happens it will not be necessary for your representations to remain temporarily in the State to be

considered. If your application is not successful or you have not made an application for subsidiary protection, the

Minister will decide on your representations to remain temporarily in the State.”

5. In response to that letter an application for subsidiary protection was made by the mother on the 9th March, 2007. That

application was refused by a letter of the 11th January, 2008. Judicial review proceedings were then brought against that decision.

The applicant states that they were “subsequently compromised by agreement” but this is strenuously denied by the respondent who

says that the issues raised in the proceedings had become moot. However that may be, the result was an acceptance by the

respondent of an application for subsidiary protection made separately on behalf of the second named applicant. This was made on

the 22nd December, 2009. Essentially, the fear of serious harm advanced as the basis of this application on behalf of the child who

was then a little over three years old, was based on the events and factors which had been relied upon by the mother in claiming

asylum. She had claimed that her own father had been a successful businessman and local chief in Bayelsa State and active in a

political party. As a community leader he came under pressure to misuse or divert certain public funds and as a result of his refusal to

comply, became the subject of threats and attacks and he and another daughter were eventually killed. It was this history and these

events which were alleged to have provoked the first named applicant to flee Nigeria. Subsidiary protection for the second named

applicant was claimed on the basis that if returned to Nigeria he too would be at risk for his life from the enemies of his grandfather.

6. The application for subsidiary protection was refused in a decision sent under cover of a letter dated the 23rd September, 2010.

This enclosed an analysis and narrative determination of the application set out in a memorandum which had been compiled and

signed off by a series of officers within the Department on dates as follows:

- The conclusion to the analysis by an Executive Officer on the 24th June, 2010;

- A recommendation made by an officer on the 26th July, 2010;

- A determination on the part of an Assistant Principal dated the 22nd September, 2010.

This was then followed by the letter dated the 23rd September, 2010, from the Repatriation Unit stating: “I am directed by the

Minister for Justice, Equality and Law Reform to refer to your application for subsidiary protection . . .” and giving the decision that

“the Minister has determined that you are not a person eligible for subsidiary protection”.

7. Following receipt of the letter of the 23rd September, 2010, on the 10th October, 2010, the applicant’s solicitors forwarded

representations under s. 3(3) (a) of the Immigration Act 1999, on the form CP/01 Part 2 with various attachments. Two particular

points were emphasised in argument on their behalf in respect of the matters advanced on that form. First, it was stated that the

mother “would not be a burden on the State as she has a job to step into if granted leave to remain from Gigshu Fashions, therefore

if granted leave to remain, she has a job to immediately step into and it would be in the best interests of the applicant’s Irish born

child, as the applicant would be able to enhance the quality of life of her child”. Secondly, a letter was enclosed from the “Maria

Assumpta Pre-School” stating that the second named applicant “attends our pre-school five days a week from 12.30 pm to 4.00 pm”

and that his “attendance is very good”.

8. As mentioned, the deportation order had already been made by the Minister on the 5th October, 2010, when these representations

were received. As result, the Minister considered the representations upon the basis that they constituted an application for

revocation of the existing order under s. 3(11) of the Act. It was on that basis that the separate decision refusing revocation was

communicated to the applicants by letter of the 8th February, 2011, accompanied by a short memorandum in which the

supplementary representations are considered.

9. It was in these circumstances that the Court considered it appropriate to treat the supplementary representations of 10th October

2010 as being, in reality, part of the overall justification for the making of the deportation order. When the supplementary submissions

were made on behalf of the applicants, the fact that the order had already been signed was unknown and those representations were

intended to be considered as part of the humanitarian considerations advanced under section 3(3)(a). The order having been made on

the 5th October, 2010, the Minister could not retroactively include them in his consideration and he had therefore no option but to

treat them under subsection (11).

The Subsidiary Protection Decision

10. The first challenge raised to the subsidiary protection decision is directed at the finding in the determination memorandum relating

to the availability of State protection to the applicant in Nigeria. The conclusion reached on this aspect of the application was as

follows:

“Overall and having regard to all of the facts on file, I am not satisfied that the applicant has demonstrated that he is

without protection in Nigeria and I do not find that there are substantial grounds for believing the applicant would be at

risk of serious harm by torture or inhuman or degrading treatment in Nigeria if he is returned there.”

11. It is submitted that this finding is unsupported by the country of origin sources which were consulted and summarised in the

preceding pages of the memorandum. The applicants point to various passages in the documentation quoted which refer to the

inefficiency, corruption and unreliability of the security forces including police in Nigeria. It is pointed out that one of the reports

quoted says that “the government seldom enforce even the inadequate laws designed to protect the rights of children”. Accordingly,

it is submitted, the conclusion reached is irrational.

12. Although it is true that some of the sources quoted record serious criticisms of security agencies in Nigeria, the main purpose of

the exercise appears to be to support the more general proposition that in Nigeria “there is state protection in the forms of

functioning police and security forces, a judicial/legal system and a mechanism of fair trial and avenues of complaint, as can be seen

below. The allegations put forward by the applicant are serious crimes which are outlawed in Nigeria and redress is through those

avenues which are available”. Thus, the point being made is that seriously imperfect though the system may be, the matters of which

the applicant complains are crimes and that there are avenues of redress against such crimes and forces or agencies charged with

responsibility for providing protection.

13. However, even if it was accepted that there is arguable substance in the submission raised in this regard, that would not, in the

view of the Court, constitute a ground for grant of leave to seek judicial review of the subsidiary protection decision, because it is

necessary to read the reasons for its refusal when taken as a whole. In fact, the predominant basis upon which the refusal decision

was made does not relate to the availability of protection in Nigeria but to the fact that the fear expressed on behalf of the child was

based upon the facts and events which constituted the basis of the mother’s fear of persecution throughout the stages of the asylum

procedure and this was found to be incredible. It must be borne in mind that both the s. 13 report of the Commissioner and the appeal

decision of the Tribunal found that the first named applicant was not to be believed in the account she gave. A series of

discrepancies, implausibilities and inconsistencies were identified, including the following:-

- Starting in 2005, she claimed to have been under threat of serious harm as a result of her father’s political involvement

but she was unable to identify who her father’s enemies were or what their particular grievances against her father were;

- She claimed to have been raped when the family were in a hideout arranged by the father, but notwithstanding the

father’s important position, no report of the attack was made to the authorities;

- Her sister had been shot by unknown men when changing to another hideout, but nothing was known of the identity of

those responsible;

- She claimed she left for the United Kingdom in January 2006, where she remained on her own for two weeks and then

returned voluntarily to Nigeria - an action inconsistent with having a fear for her own life;

- In June 2006, she claimed to have escaped an attack in a house where she was hiding with two bodyguards and later

heard that the bodyguards had been killed;

- She was sufficiently wealthy to have visited the USA in June 2004 and Dubai in April 2005, but there is no record of the

trips because she said her passport was stolen;

- She claimed to have travelled to Ireland on a passport which had neither her name nor her photograph, never having

been stopped or queried at immigration;

- She claimed to have arrived in Dublin and stayed on her own in a bed and breakfast until she went to Carlow and then

to Kilkenny where she gave birth to the second named applicant on the 12th August, 2006. Until this point she had made

no application for asylum.

14. The Tribunal member concluded:-

“In essence, the applicant claims to be fearful of people unknown to her who she claims killed her father, as a result of

decisions he allegedly made relating to the community. The applicant could not advance any further as to what these

decisions were. The applicant’s account of her many escapes from unknown men defies belief. Unknown men came to the

family home in 2005 and badly injured the security guard, necessitating the applicant having to go and live in their father’s

office in Lagos where she was then raped by an unknown man. In June the following year, some unknown men came to

her residence in Enegun and killed her two bodyguards; however, the applicant managed to jump out a window and made

good her escape. The applicant travelled out of Nigeria with her family and alone on numerous occasions on her own

account and returned there voluntarily on all of these occasions. These are not the acts of an individual who is fearful for

her life and safety. The remainder of the applicant’s family continued to live safely in Mali. Nigeria is a vast country where

the population is in excess of 120 million. The applicant has presented as a well educated and resourceful individual and it

would not seem to the Tribunal that it would be unduly harsh that she should make a life for herself elsewhere there,

should she choose to return there. The applicant throughout her hearing has not convinced me of the veracity of her

claim.”

15. In the determination of the subsidiary protection application, the same conclusion was reached:

“It seemed unbelievable that the applicant’s mother, being fearful of her life and safety, left voluntarily to seek safety in

another country and then voluntarily returned to the original country of origin a couple of weeks later, notwithstanding

her express fear. The applicant’s mother asserted that at no point of immigration was she stopped and queried or

questioned with regard to the passport she used when travelling. This in the light of the security situation that exists at

all international airports was simply not believable and her account in this regard was not capable of being believed. (She)

always had money available to finance her trips and that she would not be aware of the necessity of applying for asylum

at the first instance, notwithstanding her pregnant state, was seriously suspect.”

16. In the judgment of the Court, the determination could not be considered in any sense unreasonable or irrational in reaching that

conclusion. The essential position is this: the child is four and a half years old, was born in this country and has never lived in Nigeria.

His grandfather who is said to have been the target of the alleged threats and violence is dead. It seems unlikely that the child’s

existence is known to the unidentified enemies. The account given as to the origins of and reasons for those events is so lacking in

substance as to be incapable of furnishing any objective support for the proposition that this child would now face the same threats

from unidentified and unknown sources should he return to Nigeria with his mother.

The Deportation Order

17. The primary ground proposed to be raised as to the unlawfulness of the decision to make the deportation order (including, as

explained above, the decision to reject the supplementary representations of the 10th October, 2010), is that the Minister has failed

to comply with the requirement of Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006. That

provision reads: “Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall

proceed to consider, having regard to the matters referred to in s. 3(6) of the 1999 Act, whether a deportation order should be made

in respect of the applicant”. The submission is made that having regard to the dates of the various steps taken in arriving at the two

decisions, this “consideration” of the matters in s. 3(6) had taken place before the decision to refuse subsidiary protection was taken

on 22nd September, 2010 (sent on 23rd September,) and not afterwards as required. It is pointed out that the provision in question

and the sequence intended are reflected in the terms of the letter dated the 15th February, 2007 and quoted in para. 4 of this

judgment above.

18. The argument is based upon the proposition that in the file note dated 21/1/2010 furnished with the letter of 8/2/2011 refusing

the supplementary representations, the paragraph headed “Recommendation” contains the following:

“The submissions referred to above were read and considered. They do not raise any new issues that were not considered

previously by the Minster in deciding to make the deportation orders in relation to the applicants. Consideration was

previously given to the applicants rights under private and family rights under Article 8 of the European Convention on

Human Rights (ECHR) on the 24/6/2010 and in view of the brief time frame since that consideration, no further

consideration is due.”

19. The reference there to 24/6/2010 is to one of the series of notes prepared in the course of the “examination of file” under s. 3 of

the Act of 1999, subsequently furnished with the deportation orders of the 5th October, 2010.

20. In a manner similar to the file note referred to at para. 6 above for the subsidiary protection decision, the examination of file for

the purpose of s. 3 of the Act was compiled first by an Executive Officer in the Repatriation Unit whose contribution is dated the 24th

June, 2010. The first page of the memorandum is then annotated by a Higher Executive Officer on what appears to be the 26th July,

2010, agreeing that deportation orders should be signed and finally by an Assistant Principal on the 23rd September, 2010. The

memorandum is then stamped “Approved by Minister” at the top of the first page. Thus the recommendation to the Minister on the

making of the deportation order is signed off by the Assistant Principal on the 23rd September, 2010, which is the day after the

Assistant Principal (who appears to have been the same officer) signed off the memorandum in respect of the subsidiary protection

decision. It is thus in any event clear that the final “consideration” given to the deportation decision came 24 hours after the final

consideration given to the subsidiary protection decision.

21. In the judgment of the Court the very literal construction of Regulation 4(5) which forms the basis for this argument is in any

event inappropriate. Where the Regulation speaks of the Minister “proceeding to consider” the making of a deportation order, it is the

personal consideration on the part of the Minister himself which is referred to. Neither the Regulation nor s. 3 of the Act of 1999

precludes efficient organisation of the work involved in preparing memoranda for the consideration of the Minister for these decisions,

nor requires that it be undertaken in any particular sequence or order. It is clearly consistent with administrative efficiency and with

consistency in reaching coherent decisions on related files involving interconnected applications by the same persons, that the

preparatory work of collating and analysing all necessary information be carried out in or about the same time. When the results with

recommendations are presented to the Minister for his decisions, what is required is that the Minister should make his decision on the

application for subsidiary protection before making the decision on the deportation order. Provided the matter is addressed in that

order, there is no reason why the Minister might not make the two decisions on the same day. In the present case, the

recommendation that he should make the deportation was finally prepared on the 23rd September, 2010, but he clearly did not have it

before him for the purpose of making the final decision until the 5th October, 2010. In the judgment of the Court, accordingly, there is

no substance in this proposed ground. It follows that this criticism of the sequence in which the file notes were compiled does not

constitute evidence of bias or prejudgment on the part of the respondent as alleged.

22. The next ground relied upon is that the representations made against the deportation order were inadequately considered. In

particular, it is submitted that the Minister failed to consider two material changes in the personal circumstances of the first named

applicant since representations had originally been made in that she had received an offer of employment and the second named

applicant had now commenced education in the State. As indicated above, the memorandum supporting the refusal of the request for

revocation stated that the additional submissions had been considered but did not raise any new issues not previously considered by

the Minister in making the deportation orders.

23. Irrespective of whether this is treated as a ground directed at the adequacy of the assessment of the statutory consideration of

representations under s. 3(6) (i) for the purpose of making the deportation order or at the consideration of matters put to the

Minister as the basis for the revocation request, this Court is satisfied that no ground is made out.

24. Under s. 3(6) of the Act of 1999, subpara. (f) requires the Minister to consider the employment (including self employment)

prospects of the person. The respondent clearly did so in this case. The handwritten letter on unheaded paper from a prospective

employer who is “well known” to the applicant saying that he or she is “willing to offer an appointment to work in my store” without

any reference to the terms upon which it would be made, could not be construed as a material change of circumstance such as

require the serious consideration of the Minister. The fact that the Maria Assumpta pre-school confirmed the attendance of the

second named applicant for five days a week could not be considered either as a material change of circumstance in relation to the

child so far as concerns the balancing exercise involved in a deportation decision is concerned.

25. In the judgment of the Court it is quite clear that if the contents of the supplementary representations of the 10th October,

2010, had formed part of the original representations and been considered by the Minister before the deportation orders of the 5th

October, 2010, had been made, no arguable case could be made that these two factors would have constituted a basis for setting

aside the deportation orders upon the ground that they had not been adequately considered or weighed in the balance.

26. The Court does not consider that its conclusion in this regard can be altered by the reliance placed on the recent judgment of

Hogan J. in the case of Efe v Minister for Justice, Equality and Law Reform (Unreported, High Court, 25th February, 2011). In that

case the two letters of employment offer constituted only one of the three factors identified as the basis of a substantial ground for

questioning the adequacy of the Minister’s assessment of the representation as “full and fair”. The other two factors namely, the

failure to address the claimed Irish citizenship of a third child and the impact of the deportation on the older children, were clearly

regarded as being the more serious of the alleged flaws. Having regard to the observation that the reference in the two letters to the

absence of a work permit may have been a pretext for not offering employment, it appears unlikely that the existence of the two

letters by themselves would have been of sufficient materiality to the Minister’s assessment to have constituted a substantial ground

of unlawfulness.

27. It was also argued that there had been a denial of “fair procedures” in making the decision on the deportation orders because

there had been a long delay since the original representations had been made under s. 3(3)(a) in March 2007 and the Minister had not

given any warning of the impending decision so that updated representations might be submitted.

28. The Court considers this argument to be unfounded. First, there is clearly no statutory obligation on the Minister to given any

such warning. It is true, of course, that in some instances the general principle of fair procedures may apply so as to require the

Minister to invite comment on some information or the making of new representations. In the judgment of the Court, however, a mere

lapse of time since the first response to the Minister’s letter under s.3(3)(a) does not create such an obligation. As counsel for the

Minister in this case has correctly pointed out, the extent of the obligation of the Minster in this regard was stated by Denham J. in

her judgment in Oguekwe and Ors. v. Minister for Justice, Equality and Law Reform [2008] I.E.S.C. 25 as follows:

“Save for exceptional cases, the Minister is not required to inquire into matters other than those which have been sent to

him by and on behalf of applicants and which are on the file of the department. The Minister is not required to inquire

outside the documents furnished by and on behalf of the applicant, except in exceptional circumstances.”

29. Undoubtedly, where some exceptional circumstance arises the Minister may be put on inquiry as to the possibility that a material

change in the applicant’s situation may have occurred since the representations were first made or he may, for example, have

acquired information from some other source which ought to be put to an applicant before it can be relied upon in making the

decision. The original representations may have contained a reference or information as to a situation which was temporary in nature

– an anticipated period of hospitalisation or a reference to the expected demise from grave illness of a family member , for example –

and the lapse of time may require the Minister to ask what the current position in that regard is if it is a factor material to a balanced

assessment of the humanitarian considerations.

30. Secondly, the sequence in which the decision on the application for leave to remain will follow the refusal of subsidiary protection

was clearly stated in the letter of the 15th February, 2007, (see para. 4 above) and would in any event have been well known to the

applicant’s experienced legal representatives. Indeed, it was because they appreciated the possibility and prudence of furnishing

updated representations that they wrote on the 10th October, 2010, without having received any such warning or invitation.

31. Thirdly, this was not an instance in which there had been no contact or interaction between the applicants and the respondent

throughout the entire period since 2007. The first named applicant had pursued an application for judicial review and an obvious

opportunity to submit any updated representations considered appropriate arose in December 2009, when the application for

subsidiary protection on behalf of the second named applicant was lodged. In this regard the circumstances of the present case are

clearly distinguishable from the situation considered by Peart J. in Butusha v. Minister for Justice, Equality and Law Reform. There the

applicant had genuinely been taken by surprise in that ten days prior to the issuing of the decision, updated submissions had been

made with a clear indication that they were to be supported by a medical report which was to be available shortly. The breach of fair

procedures found by Peart J. in that case, was based upon the fact that this prompt issuing of the decision without waiting for the

medical report came after a period of some thirteen months during which correspondence on behalf of the applicant had gone

unacknowledged and unanswered by the respondent.

32. Finally, it was sought to be argued that in the updated representations of 10th October 2010 the question of refoulement had

been put in issue and that the Minister had wholly failed to address the issue in the rejection of those representations on 8 February

2011. It is true that under the heading “Prohibition of Refoulement” on the CP/01 form, a representation was made. However all that

was said was this. “Her last remaining hope is that she will get protection from the Minister as she is in dire fear of the consequences

of being returned to her country of origin as she feels that her life would be in danger..” It was claimed that the return would breach

s.5 of the Act and Articles 3 and 8 ECHR “in that she would face a serious risk to her life and liberty if deported.” It is argued that in

the alternative there would be a breach of Article 8 in that her right to “moral and physical integrity” would be threatened and that

there would be breach of Article 3 which is absolute and not confined to refugees. This is followed by a quotation from the case of

Selmouni v France. It was urged that she is a model citizen who has integrated, established friends and done educational courses and

a plea was made for her as someone who has had a tragic life in Nigeria.

33. In the judgment of the Court the response given in the file note to the effect that the submissions raised no new issues not

previously considered (see paragraph 18 above,) is fully correct in this regard also. This added representation advances no new fact

or information relevant to the question of refoulement as compared with the consideration given to that issue in the file note of 23

September 2010. The points raised are matters of argument or plea. They provide no new ground or reason to consider that some

new basis of threat had arisen which had not previously been advanced. Thus no substantial ground arises under this heading either.

34. It follows that the Court finds that no substantial ground justifying the grant of leave has been made out in respect of any of the

grounds dealt with in the this part of the application. In the light of these findings, the Court will now hear the parties upon the

application to amend the statement of grounds with a view to introducing the additional claims mentioned at the outset of this

judgment.