The applicants, a mother and her three children, Nigerian nationals, sought to challenge their negative subsidiary protection decisions and deportation orders on various grounds, including that the Minister failed to cooperate with the applicants by giving them a draft of the subsidiary protection decision, and that the applicants did not have an effective remedy against that decision for want of an appeal. The applicants also sought leave on the grounds that the Minister had not signed the deportation order personally and had not addressed personally the issue of whether the refoulement provision of s. 5 of the Refugee Act 1996 was applicable.
Reasoning & Decision
The Court rejected all the arguments in relation to the cooperation and effective remedy points. In relation to the latter arguments, the Court noted that the first of those two matters was the subject of the judgment of the Court in LAT v Minister for Justice (where the Court held that the Minister does not have to make a deportation order personally, and which is on appeal to the Supreme Court). In relation to the final point, the Court noted that that the applicants relied on the dicta of Murray CJ in Meadows v Minister for Justice where the Chief Justice opined that it remains at the deportation stage for the Minister alone in light of all the material before him to form an opinion on non refoulement.
The Court said that while the comments of Murray CJ did not exclude application of the Carlonta principle, the issue was undecided and clearly of considerable importance, particularly in view of the recent apparent change in practice within the Department to delegate to officers entirely the functions of analysis and assessment and the formulations of the recommendations in the examination of file note, the approval of deportation and the formal signing and sealing of the deportation order. Thus, having regard to the emphasis laid by Murray CJ on the statement that it is for ‘the Minister alone’ to form an opinion required by s. 5 of the Refugee Act 1996, the Court granted leave for judicial review of the deportation orders on the ground that they are invalid by reason of the Minister not having personally considered whether the State’s non refoulement obligations would be breached by the deportation of the applicants.
The Court granted leave on that one point.