AAR v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2015] IEHC 32
Nature of Proceedings:Judicial Review
Judgment Date/s:22 Jan 2015
Judge:Stewart J.
Category:Deportation
Keywords:Asylum, Asylum Seeker (Secondary Movement of), Deportation, Persecution, Protection (Subsidiary), Refugee, Refugee Law
Country of Origin:Tanzania / Somalia
URL:https://www.courts.ie/acc/alfresco/a50267d5-22d8-4fbd-9609-f85f712dcc2a/2015_IEHC_32_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant claimed to be a national of Somalia and a member of the Bajuni ethnic group. He said he lived on the island of Chula with his wife and five children. He sought asylum in Ireland, claiming to have fled persecution in Somalia at the hands of an Islamist militia fighting the then government. His application for asylum was unsuccessful and he was refused a declaration of refugee status by the Minister.

In the course of his asylum application, information came to light from the United Kingdom Border Agency which indicated that his fingerprints matched those of a Tanzanian national who had successfully applied for a visa to visit the United Kingdom for medical treatment. He did not disclose this in his application.

During his interview with the Commissioner, he had answered incorrectly a number of questions on Somalia and Bajuni culture that had been put to him. In addition, he underwent language analysis, which resulted in a report which concluded that he spoke a variety of Swahili found “with certainty not in: Somalia” and “with certainty in: Kenya.”

The applicant then applied to the Minister for Justice for subsidiary protection and leave to remain on the 16th March, 2010. It was submitted that he was receiving medical treatment for leukaemia and would probably need a bone marrow transplant. It was said that his brother had donated bone marrow and that supporting documentation would be forwarded as soon as it came to hand.

The Minister replied indicating that he intended to process the applicant’s application on the basis that he was a Tanzanian national, and gave him 15 days to make submissions as to why he should not do so.

The Minister refused his application for subsidiary protection and made a deportation order against him.

The court noted that amongst the applicant’s documents on its file was a letter written on his behalf by his solicitors and dated the 26th January, 2011. This was sent to the Minister and enclosed a confidential medical report dated the 25th January, 2011, confirming that he had had a bone marrow transplant and complications arising out of it. It was said that, if he were to return to Somalia, he not receive the level of specialist care that he required and that he would inevitably die. The court noted, however, that the Minister averred that the letter was not received by the Minister until after he had made the deportation order.

The applicant challenged the deportation order in the proceedings, claiming that the Minister had not given consideration to the situation in Tanzania, on which the applicant had made no submissions at all. He also claimed that the Minister failed to consider detailed submissions made on his behalf as to whether a British visa could have been issued in Tanzania for a person, such as the applicant, using a false passport. It was also said that the Minister’s finding that the applicant was certainly Tanzanian on the basis of the British visa application was unreasonable given that there was no further information to suggest he was Tanzanian, and when the language he spoke indicated otherwise.

The applicant also contended that the Minister had failed to consider the medical report of the 25th January, 2011 when making the deportation order. He also impugned the finding that treatment for his condition would be available in Tanzania, claiming that it did not follow from the country of origin information. He also complained that the position in Somalia had not been considered at all.

The court ruled out an attempt to challenge the decision on the ground of lack of fair procedures, holding that it did not form part of the statement of grounds. Having done that, it assessed the grounds relied on and upheld the Minister’s decisions.

Reasoning:
The court noted that the Minister had averred that all of the applicant’s circumstances had been considered, including his medical condition, his private life and his representations for leave to remain. It accepted that that was the case. It observed that the applicant had undergone the transplant surgery on the 14th February, 2010 and that it had been referred to in the application for leave to remain, which indicated that a further medical report would be furnished when it came to hand. Despite that, it pointed out that there was no explanation in the pleadings and evidence before it why that report had not been furnished in the intervening months and in the period leading up to the making of the decisions to refuse subsidiary protection and to recommend deportation.

The court held that, in the circumstances, the Minister was entitled to refuse the subsidiary protection application and to make the deportation order.

The court then turned to arguments about the alleged threat to the applicant’s life attendant upon his deportation, which referred extensively to case law of the European Court of Human Rights and the decision in N. v. United Kingdom (2008) 47 E.H.R.R. 39, where the Grand Chamber of the court held that the decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State could raise an issue under article 3 ECHR (prohibition of torture or inhuman and degrading treatment), but only in a very exceptional case, where the humanitarian grounds against the removal were compelling.

In making the deportation order, the Minister had decided that there was nothing in the medical evidence supplied to date to show that the applicant’s medical condition was capable of being considered ‘exceptional’ within the meaning of the jurisprudence of the European Court and its application in Irish law. He noted that there was a functioning healthcare system operating in Tanzania.

The court held that, having considered the subsidiary protection decision and the analysis which underpinned the deportation order, all relevant matters had been properly and carefully considered by all relevant officials, and ultimately by the Minister, prior to the making of the deportation order. The Minister made the decision based on the information before him at that time and was entitled to do so.

Decision:

The court accordingly refused leave to challenge the decisions.

Principles:

A person who makes an application for subsidiary protection or leave to remain is an active participant in the process and it is incumbent on him or her to make available to the decision-making body the evidence needed to make a decision on it. Such a person cannot validly complain if there has been undue delay on his or her part in submitting such information, leading to its not being before the decision-maker at the time of making the decision.

A decision to deport a non-Irish national who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the State can raise an issue under article 3 ECHR (prohibition of torture or inhuman and degrading treatment), but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.

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