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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Osaretin Osaghe -v- Minister for Justice Equality & Anor [2012] IEHC 153 (20 April 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H153.html Cite as: [2012] IEHC 153 |
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Judgment Title: Osaretin Osaghe -v- Minister for Justice Equality & Anor Neutral Citation: 2012 IEHC 153 High Court Record Number: 2011 592 JR Date of Delivery: 20/04/2012 Court: High Court Composition of Court: Judgment by: Cross J. Status of Judgment: Approved |
Neutral Citation 2012 [IEHC] 153 THE HIGH COURT JUDICIAL REVIEW [2011 No. 592 J.R.] IN THE MATTER OF EU DIRECTIVE 2004/83/EC IN THE MATTER OF STATUTORY INSTRUMENT 518/2006 BETWEEN OSARETIN OSAGHE APPLICANT AND
MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Kevin Cross delivered the 20th day of April. 2012 1. By an order of 25th July, 2011, Cooke J. granted the applicant leave to apply for judicial review in respect of the following reliefs:-
(ii) A declaration that S.I. 518/2006 fails to properly transpose into domestic law of the provisions of EU Directive 2004/83/EEC. (iii) A declaration that the consideration of the applicant's claim was not carried out in accordance with the provisions of EU Directive 2004/83/EC of 24th April, 2004 and/or S.I. 518/2006. (iv) A declaration that the unavailability of an effective remedy by which the impugned decision may be appealed renders the decision invalid. (v) Further or other relief as to this Honourable Court shall de-meet. (vi) An order providing for an award of costs of these proceedings to the applicant.
"Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application." (Emphasis added) It was contended that Article 4.1 had not been properly transposed into domestic law as there was no reference to the requirement of cooperation. (ii) The failure of the first named respondent to cooperate with the respondent in assessing the relevant claim where the breach or the minimum standards mandated by the terms of the Qualification Directive. (iii) By omitting the requirement to cooperate with an applicant from the provisions of S.I. 518/2006, the respondents have failed to properly transpose the terms of the Qualification Directive into domestic law. (iv) The failure to provide an effective remedy in accordance with the Constitution and/or Article 3 of the European Convention and/or Article 47 of the Charter of Fundamental Rights renders the decision to refuse subsidiary protection or the purported finality of this decision invalid. (v) The failure to provide a mechanism by which the applicant can appeal the refusal of subsidiary protection in breach of the principle equivalence in that subsidiary protection which is based on EU law is subject to the rules which are less favourable those applied in national law to similar decisions in particular the applicant's asylum claim. 3. The applicant claims to be a Nigerian national who arrived in the State and sought refugee status on 21st March, 2006. She claims that she was seeking asylum on the basis that she would be forced into marriage if returned to Nigeria. She was pregnant at the time of her entry into the State and she claimed that her parents had tried to force her to marry a 65 year old Muslim man though she is a Christian and that following the threat of a forced marriage, she had married a Christian man and that her life was under threat when the 65 year old man became aware of the existence of the marriage. 4. The ORAC concluded the applicant had not presented any indication that she was in need of international protection. The applicant initially sought to challenge the decision by the ORAC by judicial review which was refused by Feeney J. on 7th December, 2007. The applicant also files a notice of appeal to the Refugee Appeals Tribunal (RAT). The RAT had an oral hearing on 14th August, 2008 and in its decision of 16th September, 2008, held against the applicant by affirming the ORAC decision and also making credibility findings against the applicant. 5. By letter of 4th November, 2008, the applicant applied for subsidiary protection and for leave to remain within the State and resubmitted an application on 19th October, 2009 as the previous application was incomplete. 6. This application for subsidiary protection was considered on 5th July, 2011 and determined on 6th July, 2011 and the applicant was notified by letter dated 7th July, 2011. 7. The within judicial review proceedings challenging the decision were filed on 15th July, 2011 and on 25th July, 2011, Cooke J. heard the application for leave ex parte and granted leave in respect of the above grounds. 8. Accordingly, the above grounds and one further matter of importance fell to be considered by this Court. 9. The matter of further importance will be discussed below. The Grounds upon which Leave was Granted 11. In particular, F.N v. Minister for Justice, Equality and Law Reform [2009] 1 IR 88 at p. 131, para. 69; Ahmed v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Birmingham J., 24th March, 2011); Mayie (IMM) v. Minister for Justice and Equality (Unreported, High Court, Cooke J., 27th July, 2011) (paras. 16 and 17); Akhile (BJSA) v. Minister for Justice and Equality (Unreported, High Court, Cooke J., 12th October, 2011); Oziegbe v. Minister for Justice and Equality (Unreported, High Court, Ryan J., 14th December, 2011) (paras. 16 and 17); P.I and E.I v. Minister for Justice and Equality (Unreported, High Court, Hogan J., 11th January, 2011); Jayeola v. Minister for Justice and Equality (Unreported, High Court, Cross J., 3rd February, 2012); and Nendah v. Minister for Justice and Equality (Unreported, High Court, Cross J., 16th February, 2012). 12. These judgments were made notwithstanding in some cases the reference to the Court of Justice of the European Union by Hogan J. of this point in M.M 13. Given the weight of these judgments, counsel on behalf of the applicant properly just made and submitted these points should they be required to be made for a further consideration in another court. 14. For the reasons as outlined in the above cases, the court rejects the application for judicial review on those grounds. 15. In relation to the alleged failure of effective remedy (Grounds 4 and 5), this matter has also been heard and considered and rejected by the High Court on a large number of cases as being, inter alia, "manifestly unstatable": J.B. (A Minor) v. Minister for Justice and Equality (Cooke J.) [2010] IEHC 296 and ISOF v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Cooke J., 17th December, 2010) in terms as follows:-
17. The one exception relied upon by the applicant is the decision of the Supreme Court in the case of Donegan v. Dublin City Council and Dublin City Council v. Gallagher (Unreported, Supreme Court, 27th February, 2012) in which McKechnie J. delivering the decision of the five judge court stated that judicial review was not an effective remedy to a decision under s. 62 of the Housing Act 1962. 18. This case was argued after the argument in Lukombo v. Minister for Justice and Equality [2011] 830 J.R. and Okunade v. Minister for Justice and Equality [2011] 793 J.R. but before the judgments of this Court delivered on 27th March, 2012 and 30th March, 2012, respectively. 19. In the said judgments, this Court pointed out that the Donegan decision was specific to the peculiar provisions of s. 62 of the Housing Act which allowed a local authority to obtain possession merely by showing the formal proofs that they had provided the tenancy that no tenancy exists in respect of such dwelling and that notwithstanding demand for possession, the dwelling remains occupied by the individual to whom demand is addressed and that the demand contained a statement of the housing authority's intention to invoke s. 62 of the Act. 20. Once the local authority was able to furnish the above proofs, they were entitled to an order for possession automatically and there could be no examination by the District Court of the reasons behind this invoking of Section 62. 21. In particular, in the Donegan case, the central allegation was that Mr. Donegan or a member of his family was dealing in drugs from the premises. That issue could not be litigated in the District Court and accordingly judicial review could not be a remedy for that dispute. 22. This Court in the above cases refused relief and held that the Donegan case (above) provided no new ground to challenge judicial review as an effective remedy for a subsidiary protection decision. 23. In a subsidiary protection decision, the Minister is obliged to set out the rational and the reasons for his decision and how he came to it and the Minister did just that, and this decision is subject to judicial review under the principles as set out by the Supreme Court in Meadows. So subsidiary protection is not one of the exceptional cases referred to in Donegan whereby judicial review is not an effective remedy. 24. Accordingly, subject to the one proviso discussed below, the applicant must fail in her case. Serious Harm and Actors of Serious Harm 26. Making this analysis, the decision maker considered the applicant's fear of serious harm from the Muslim man and his associates known as the Kanduna Mafia and the availability of State protection for the applicant and her family. 27. The decision maker found after examining the country of origin information that there was a functioning police force in Nigeria and that avenues of complaint were open to the applicant if she was not happy with the service she received and the decision maker concluded:-
The decision maker then went on to consider whether the applicant has been subjected to 'serious harm' as defined in Regulation 2(1), as stipulated in Regulation 5(2) and the decision maker concluded as he has done so in numerous cases such as this that "in accordance with Regulation 2(1) non State actors can only be considered to be actors of serious harm if it can be demonstrated that the State or parties or organisations controlling a State or a substantial part of the territory of that State are unable or unwilling to provide protection against serious harm. It has not been demonstrated that Nigeria is unable or unwilling to provide protection against the treatment already suffered by the applicant and therefore the alleged inflictors of this treatment cannot be considered to be 'actor of serious harms' within the meaning of Regulation 2(1) as serious harm can only be carried out by 'actors of serious harm' within the meaning of Regulation 2(1). I do not find any evidence that (the applicant) has suffered treatment in Nigeria that would come within the definition of 'serious harm' as defined in Regulation 2(1)."
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or (c) serious and individual threats to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
35. Clearly, however, where harm has been carried out by persons who are not actors of serious harm is of great relevance to the decision in ascertaining whether the applicant will ultimately [be] entitled to a subsidiary protection decision. The definition of persons eligible for subsidiary protection is as stated quite clear as being (persons in) '...respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin...would face a real risk of suffering serious harm...and is unable, or owing to such risk unwilling to avail themselves of the protection of that country'. … 37. The court holds that the statement by the Minister that 'serious harm can only be carried out by actors of serious harm within the meaning of Regulations 2.1, I do not find any evidence that the applicant has suffered treatment in her country of origin that would come within the definition of serious harm as defined in Regulation 2(1)', is manifestly false." 31. This is a case in which leave was not sought to be obtained in the above point and was not granted on the above point. It was not a point unknown to practitioners at the time leave was sought to be granted in this case. The legal advisers to this applicant are well versed and skilled in application for judicial review but they chose not to seek leave on this point, which has been made previously in the JTM case and indeed other cases. 32. The applicant first sought to extend the time to make this application and amend her grounds. 33. The decision that is sought to be impugned was made on 6th July, 2011 and accordingly, the applicant is more than three months out of time in respect of this application. 34. The applicant submitted, however, that it would be contrary to the interest of justice not to allow the amendments as sought in order to have the entirety of the matter litigated. 35. In G.K v. MJELR (Unreported, Supreme Court, 17th December, 2001), it was held that the time for applying for judicial review in respect of any matter under s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000, could only be extended if the court considered that they were "good and sufficient reason" for extending that period. It was further held in that case that "good and sufficient reason for extending the period" clearly permitted the court to consider whether the applicant's substantive claim was arguable. 36. In this case, counsel for the applicant and the indeed the respondent submitted that I should not look into the merits of the substantive point made in respect of "actors of serious harm" before deciding whether the time should be extended. 37. The court held that it would consider the matters in the round and would hear submissions on the merits oft he extension of time and substantive argument "de bene ese" and then give a judgment as to whether the time should be extended and if so, whether the point was valid. 38. Notwithstanding the views of counsel for both sides and accepting that the case of G.K. was decided in terms of the special time limits imposed under the Illegal Immigrants (Trafficking) Act 2000, this Court is also of the view that in deciding whether or not to exercise its discretion, the provisions of O. 84, r. 21, means that the guidance of the Supreme Court in G.K. was indeed relevant. 39. Under O. 84, r. 21, an application for leave for judicial review must be made promptly and in the case of certiorari at the outside six months unless the court considers they are good reasons to extend the time. 40. Accordingly, the court will examine the principles involved and will include an examination of the merits of the substantive claim that it is sought to make at this stage. The applicant did not swear any affidavit setting out this claim for an extension of time but in the circumstances, the court will treat the matter as if an application was formally made. 41. In O'Driscoll v. Law Society of Ireland, McKechnie J. in the Supreme Court (27th July, 2007) reviewed the case law of dealing with extension of time under O. 84, r. 21(1) and said:-
43. In MYG v. MJLER, Herbert J. (28th April, 2010) dealt with the issue of an amendment of the statement grounding the application for judicial review as follows:-
45. In this case, the applicant says she will be prejudiced by a refusal of the amendment though it is conceded that no deportation decision has been made and indeed that the respondent halted any consideration of the deportation until the proceedings herein had been determined. 46. In MYG, Herbert J. concluded:-
In my judgment, to permit the proposed amendment would be to defeat and circumvent the clear legislative policy expressed ins. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. It would also be a breach of the principle that there should be an end to litigation. If an amendment of the type sought were to be permitted every time leave was granted in some other application on some consideration which it could be claimed was also applicable to the instant case, judicial review applications would become interminable and the great remedy for an alleged abuse of due process would itself become such abuse..." 48. Notwithstanding that difficulty, however, the court is of the view that it should examine the merits of the substantive case sought to be made by the applicant to ascertain whether or not there is indeed an injustice which could only be remedied by the amendment. 49. In the JTM case discussed above, it is essential to remember the particular facts which following from the court's rejection of the approach taken by the decision maker led to the further decision to grant judicial review. 50. In JTM, in which the credibility of the applicant was unchallenged, the applicant claimed, as was the case, that she had been subjected to a number of acts of rape, physical assaults and threats of assault from family members of her husband in a ritual manner in order to supposedly cure her of infertility and that clearly she had been subjected to "serious harm" unless the definition of "serious harm" had confined that harm to incidents carried out by a group of persons called "actors of serious harm". 51. What was central to the judgment in JTM was the fact that in the Irish Statutory Instrument, an addition not contained in the equivalent European Directive had been added to the provisions of Regulation 5(2) as follows:-
53. In the instant case, the applicant was not subjected to any past serious harm though threats were allegedly made against her. 54. Accordingly, the court is not of the view that even if leave had been granted in respect of the application in relation to "serious harm/actors of serious harm" and such application were made within time that no case can be made by this plaintiff that notwithstanding any error on the part of the Minister indefining "serious harm" that this applicant could avail of this error and successfully set aside the subsidiary protection decision. 55. The court therefore will not allow the amendments sought and if the matter had been made in time would hold that the applicant must fail on this ground. Conclusion |
