PO and SO (a minor) v Minister for Justice and Equality, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 141
Nature of Proceedings:Judicial Review
Judgment Date/s:21 Mar 2014
Judge:McDermott J.
Category:Deportation
Keywords:Country of Origin Information, Deportation, Deportation Order, European Convention on Human Rights (ECHR)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/22cca500-f23f-4919-a4f4-857b10bea4bc/2014_IEHC_141_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were Nigerian nationals. The first named applicant arrived in Ireland in 2006 and unsuccessfully applied for asylum, a claim which was based on her fear of persecution at the hands of the family of a friend whom she had converted to Christianity, and against whom she said the police would not act. Subsequently, the Minister signed deportation orders against them in 2012, and notified them thereof. They subsequently sought revocation of the orders, which were affirmed by the Minister, whose decision was challenged in these proceedings, leave to pursue an order of certiorari having been granted by Clark J. previously. The court at the post-leave stage declined to grant the reliefs sought, and upheld the refusal of the revocation application.

Reasoning:
The applicants contended that the Minister’s decision ought to be quashed because it breached fair procedures in that reliance was placed by him on deficient country of origin information, and because he ignored country of origin information submitted on their behalf.

The court observed that, in order to substantiate the claim that the Minister had relied on incorrect country of origin information, the applicants had to demonstrate that some fundamental mistake had occurred in the use or interpretation of the available information, or where the conclusion reached was manifestly at variance with the content and obvious effect of the documentation.

The court noted that the information sourced by the Minister was more recent than that supplied by the applicants’ solicitors, and indicated that state protection would be available to the applicants in the form of a reformed and reforming police force underpinned by a governmentally inaugurated code of conduct. It noted that the Minister’s duty was to ensure that all up-to-date information available was considered fairly. It held that the applicants had failed to demonstrate the existence of a fundamental mistake or error in his consideration of the information.

The court observed that the decision of the Supreme Court in Smith v. Minister for Justice [2013] IESC 4, made clear that it was only when new material was advanced that a revocation application could be looked on favourably. The court found that the applicants had not advanced much that was new in their application, or that could not have been advanced in their earlier application for leave to remain.

The court rejected the complaint that the procedures adopted by the Minister were unfair, because he failed to make them aware of his intention to rely on information other than that submitted on their behalf before making his decision.

It pointed out that the new documentation relied upon by the Minister was freely available to the public and did not come from private sources. Nor did it alter the scope and nature of the inquiry carried out by him. The information was not new and amounted to an updating of previous documentation furnished by the applicants, to whom it was readily available from sources well-known to those practising immigration and asylum law.

The court rejected the complaint that the Minister had failed to inform the applicants of the principles, policies and guidelines pertaining to the making of decisions on revocation applications. It held that it was clear that the Minister had to focus carefully on the circumstances of each particular case, and that the absence of guidelines or policy did not vitiate his decision, the nature of which had to be understood in the context of an overall consideration of the statutory scheme, the relationship between s. 3(1) and s. 3(11) of the Act of 1999, and previous decisions taken in the asylum process. It relied on Sivsivadze v. Minister for Justice and Equality [2012] IEHC 244 and M.A. v. Minister for Justice (Unreported, High Court, 17th December, 2009) in reaching that conclusion.

The court concluded by holding that most of the material considered in the consideration of the revocation application had been previously considered and available in the examination of file which preceded the making of the deportation orders, and that some additional materials had also been referenced and quoted in the consideration. It was satisfied that those materials had been readily available to the applicants, and that they did not afford any basis upon which to challenge the Minister’s decision refusing to revoke the deportation orders.

The court rejected the applicants’ complaint that their rights under article 8 ECHR had been engaged to the point where affirming their deportation from the State would be unlawful, and that there was a failure to provide a rationale for the Minister’s contrary conclusion. It noted that that matter had also been considered in the examination of file which preceded the making of deportation orders against them.

It rejected the contention that article 8 EHCR was breached simply because the second named applicant had commenced school and, if he were allowed to remain, would benefit from the Irish education and health systems. It concluded that that did not amount to such exceptional circumstances as would entitle them to remain in Ireland. It relied on the decision of Feeney J. in Agbonlahor v. Minister for Justice, Equality and Law Reform [2007] 4 I.R. 309 in that regard.

Decision:
In the light of all the above, it refused the application for an order quashing the Minister’s refusal to revoke the deportation orders in respect of the applicants.

Principles:

In order for an application for revocation of a deportation order to succeed, new or changed information must be submitted to the Minister for Justice.

A high threshold has to be surmounted by an applicant who contends that the Minister for Justice has failed to have any or any proper regard to country of origin information when examining an application for revocation of a deportation order. The existence of a fundamental error in the consideration must be shown.

The Minister is not restricted to considering only the information submitted by the applicant, but is entitled to have regard to up-to-date information sourced by himself. There is no general obligation to put such information to an applicant for comment. Examples where disclosure might need to be made included where a document sourced late in the procedure had the capacity radically to alter the entire basis of the application, or where a decision-maker had access to a stream of information which was not publicly available, but was in conflict with publicly available material.

The absence of guidelines or policy pertaining to the assessment of revocation applications does not render decisions on them unlawful. Each application must be assessed on its own facts and the assessment has to be understood in the context of the statutory scheme, the relationship between s. 3(1) and s. 3(11) of the Immigration Act 1999, and previous decisions taken in the asylum process.

Non-nationals who are subject to deportation cannot claim any entitlement to remain in the territory of the State under the ECHR in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state except in exceptional circumstances.

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