Judicial Review - application for judicial review of a decision taken by
the Minister for Home Affairs on 22nd August, 2018.
[2019]JRC017
Royal Court
(Samedi)
7 February 2019
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Before :
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T. J. Le Cocq, Esq., Deputy Bailiff, sitting
alone.
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Between
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A
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Applicant
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And
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Minister for Home Affairs
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Respondent
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IN THE MATTER OF AN APPLICATION FOR
LEAVE TO APPLY FOR JUDICIAL REVIEW
Advocate R. D. J. Holden for the Applicant.
Advocate S A Meiklejohn for the Respondent
judgment
the deputy bailiff:
1.
This is an
application by A ("the Applicant") for leave to bring an
application for judicial review of a decision taken by the Minister for Home
Affairs ("the Minister") on 22nd August, 2018, to refuse
the applicant's application for asylum ("the Decision"). The matter was presented as is usual by ex parte application dated 30th
November, 2018, and I directed that it should be served upon the Minister and
that leave should be considered on an inter
partes basis.
2.
The test
that I should apply in considering whether or not leave should be granted is
not in dispute. It has been most
recently stated in the case of X -v- Minister for Home Affairs
[2018] JRC 222, in which, at paragraph 3, I said:-
"At this stage I am
considering whether or not leave should be granted to the Applicant to apply
for judicial review. The test that
I should apply is not in dispute.
It is the test set out by the Privy Council in Sharma -v-
Browne-Antoine (6) [2007] 1 WLR 780 as applied by this Court in Warren
-v- Lieutenant Governor [2017] (1) JLR 291 where, at paragraphs 3 and
4, Beloff Commissioner said:-
"3. The test for such leave
in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier
(7), is that set out by the Privy Council in Sharma -v- Browne-Antoine
(6) [2007] 1 WLR 780, at para 14(4):
"The ordinary rule now is
that the court will refuse leave to claim judicial review unless satisfied and
there is an arguable ground for judicial review having a realistic prospect of
success and not subject to a discretionary bar such as delay or an alternative
remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR
623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p426. But arguability cannot be judged without
reference to the nature and gravity of the issued to be argued. It is a test which is flexible in its
application."
4. For an application for judicial
review to succeed, the Royal Court would have to be satisfied that His
Excellency's decision was unlawful, irrational or flawed by procedural
impropriety (Planning & Environment Cttee. -v- Lesquende Ltd.
(4)) and for present purposes I must be satisfied that one or more of those
grounds is arguably established on the material before me.""
3.
I then
went on to quote an extract from J -v- His Excellency the Lieutenant
Governor of Jersey [2018] JRC 072A in which Sir William Bailhache, Bailiff,
said this:-
"1. On 23rd October 2017 the
Applicant sought leave to apply for judicial review in relation to the decision
of the Respondent on 24th July 2017 to deport the Applicant from the Bailiwick
of Jersey. On 24th October, the
Court granted the Applicant leave. Affidavits have been filed in accordance
with the Royal Court Rules and a date fixed for hearing. Although the issue is arguably one of
law, I decided to sit with Jurats because, as will be apparent from this
judgment, the case raises questions of proportionality and human rights -
see Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 at paragraph 23. Indeed, the parties were agreed that it was appropriate
that the Court be so constituted."
4.
Then, at
paragraphs 2 to 5 inclusive, the Court went on to analyse the approach to
deportation in the following terms:-
2. There is no right of appeal
against the decision of the Lieutenant Governor and judicial review is
therefore the only basis upon which the Applicant can have the decision
examined by an independent tribunal.
That being so, although it is a question of judicial review, the ambit
of the examination is wider because the Human Rights (Jersey) Law 2000 requires
that a decision affecting the human rights of the Applicant must ultimately be
taken by a human rights compliant tribunal. See also De Gouveia v Lieutenant
Governor and Minister for Home Affairs [2012] (1) JLR 291 at paragraph
23. The Court on judicial review,
as it were, fills the gap which otherwise exists from having no human rights
compliant tribunal to which the Applicant can appeal from the
Respondent's decision.
Although these statements are of direct relevance to judicial review in
deportation cases, they have a wider significance. On occasion the courts have
to consider the reasonableness of a decision by a minister that may expressly
have been considered by the States.
Where, for example, a minister has delegated power under a piece of
primary legislation to make an order, which is tabled before the States and may
in some cases be debated, the fact that the order has been approved by the
States is no bar to an examination by the court of its compatibility with the
Human Rights Law and indeed it is the duty of the Court in such a case to apply
a full Human Rights review to what the minister has set out in his or her
order, just indeed as there would be a full review as to whether the order fell
within the vires of the primary legislation. The fact that the same process
would apply where Regulations, also secondary legislation, are challenged in
court, demonstrates that the approval by the States of a piece of secondary
legislation does not inhibit the duty of the courts to investigate the
lawfulness of such legislation. This is consistent with the comments of Lord
Phillips of Worth Matravers MR in R v Secretary of State for the Home
Department ex parte Brind 2 AC 696 when he said:-
"'The wider
principle' of common law must accommodate the right and the duty of the
court to review the legality of subordinate legislation. The fact that, in the course of debate,
the Secretary of State or others make statements of fact that support the legitimacy
of the subordinate legislation, and that the house thereafter approves the
subordinate legislation, cannot render it unconstitutional for the court to
review the material facts and form its own judgment, even if the result is
discordant with statements made in parliamentary debate."
3. In Wang v Secretary of State
for the Home Department [2007] UKHL 11, the House of Lords took the same
approach in relation to the submission of the Secretary of State that the
decision taker and the court should assume that the immigration rules adopted
by the responsible minister and laid before parliament "had the
imprimatur of democratic approval and should be taken to strike the right
balance between the interests of the individual and those of the
community". Political and
legal authority are to be distinguished, and the doctrine of judicial deference
does not mean that the courts should surrender their own fundamental
responsibility to determine the lawfulness of what is in question in the
case. We make these comments
because the powers and duties of the Lieutenant Governor in relation to
deportation have been passed to the Minister for Home Affairs, and we make it
plain that the identity of the decision taker makes no difference to the
approach which the Courts will take in relation to these matters.
4. It is for these reasons that the
traditional Wednesbury standard of unreasonableness - was the decision of
the decision maker so unreasonable that no reasonable decision maker could
reach it? - is inappropriate where the decision under review engaged a
fundamental right or important interest. Where that is the position, the
decision does indeed engage the most anxious scrutiny of the courts - see
Bugday Cay v Secretary of State for the Home Department [1987] AC 514 at
531 per Lord Bridge. As Sir Thomas
Bingham MR (as he then was) put it in R v Ministry of Defence ex parte Smith
[1996] 1 All ER 257, the more substantial the interference with human rights,
the more the court will require by way of justification before it is satisfied
that the decision is reasonable. In
R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph
37, the Court of Appeal said that:-
"It is not open to the
decision maker to risk interfering with fundamental rights in the absence of
compelling justification".
5. There are nonetheless
constraints upon the Court's powers to intervene. First of all, the Court is not a fact
finding body in this exercise. It
takes a given set of facts and applies the relevant legal tests to them. Of course, one such legal test may
involve consideration of a submission that the decision taker has proceeded on
the wrong facts, but it seems to us that it would be very rare and highly
exceptional that any evidence other than affidavit evidence would be considered
by the Court on such applications.
Secondly, it is not correct to say that there is no deference to the
decision taker. A higher degree of
scrutiny on human rights grounds is still not a full merits review. What is
needed is that the Court examine what reasons have been given, whether they
comply with the fundamental rights of the applicant and in particular whether
the lawfulness of what has been done meets the structured proportionality test
that the Courts now apply, recognising that the decision taker has a
discretionary area of judgment."
5.
I have
repeated the extract once again for the same reason as I did in X,
specifically because in my judgement if it is arguable that the
applicant's case involves fundamental issues of human rights or an
assessment of proportionality arises then the principles set out in J
will apply. In my judgment the
approach of the Court on the matter of deportation should also apply when
considering asylum.
6.
The
Applicant is from Bangladesh. He
had previously left that country and had entered the United Kingdom on a
student visa which expired in June 2012.
On his case, he fled Bangladesh and feared to return and remained in the
British Isles and ultimately was arrested in Jersey in August 2017. He first claimed asylum on 20th
October, 2017.
7.
His asylum
application was based on his having been a member of the Bangladesh National
Party ("BNP") which was and is in opposition to the Awami League
("Awami") who are currently in power in Bangladesh.
8.
The
Applicant alleges that Awami has victimised those who oppose it including
members of the BNP and that the security services in Bangladesh are complicit
in such victimisation which extends to the murder of political opponents.
9.
The
Applicant states that he had attended two demonstrations organised by the BNP
in 2007 and 2008 at which there had been violence and following which he,
together with others, had been falsely charged with offences.
10. Following the Applicant's asylum
application, he was further interviewed and a report was prepared for the
Assistant Minister of Home Affairs dated 11th January, 2018
("the Report"). The
application for asylum was rejected.
11. The Applicant obtained leave to judicially
review that rejection but in the event that judicial review did not proceed
because the Assistant Minister had revoked her rejection in the light of and
following the decision in J above.
12. The Applicant was thereafter provided with a
copy of the Report, which he had not previously seen, and an addendum Report
dated 30th May, 2018, ("the Addendum"). He made submissions on those documents
through his legal representatives by letter dated 13th August, 2018,
("the Letter").
13. The Applicant's application for asylum
together with the Report, the Addendum and the Letter were provided to the
Minister on 17th August.
14. On 22nd August, the Minister took
the Decision.
15. Two days later, on 24th August,
2018, the Minister indicated his initial reasons to the Customs and Immigration
Service which suggested there were inconsistencies in the Applicant's
evidence and certain parts of the Applicant's case had not been
accepted.
16. Subsequently it was indicated that the Minister
would draw together various points from the Report and Addendum that he had
considered and provide a rationale for the Decision and, five days thereafter,
the Minister provided informal reasons on 29th August, 2018.
17. Subsequently, on 31st August, 2018, the
Applicant was notified of the Decision and on 7th September, 2018,
final formal reasons were provided for that refusal.
18. The claim for asylum is based on the
Applicant's fear that if he is returned to Bangladesh his life and
liberty will be in danger and he will otherwise face acts of persecution by
agents of the state or by non-state agents acting with the aid or explicit approval
of the state. Accordingly, so it is
argued, the Applicant's asylum application engages Article 2, the right
to life, of the European Convention on Human Rights as enshrined in the Human
Rights (Jersey) Law 2000 and the Article 3 of the Geneva Convention of
Human Rights in respect of a person's right to life and liberty.
19. The specific grounds relating to this
application for leave are that:-
(i)
there has
been a retrospective rationalisation by the Minister for the Decision;
(ii) the reasons given by the Minister are
inadequate and/or unintelligible;
(iii) the Decision was irrational in that it failed
to determine and/or drew incorrect and illogical conclusions from the material
provided to the Minister;
(iv) The Minister wrongly took into account
irrelevant considerations - specifically the screening interview that the
Applicant underwent;
(v) The Minister failed to take into account
guidance and country of origin information regarding enforced disappearances and
internal bias;
(vi) The Minister failed to take into account a
relevant consideration, namely the requirements of Rule 334 of the Jersey
Immigration Rules.
20. Rule 334 of the Immigration Jersey Rules
at paragraph (v) states:-
"An asylum applicant will be granted
refugee status in Jersey if the Minister is satisfied that: ...
(v) refusing his application would
result in the applicant being required to go (whether immediately or after the
time limited by any existing leave to enter or remain) in breach of the Geneva
Convention, to a country in which his life or freedom would be threatened on
account of his race, religion, nationality, political opinion or membership of
a particular social group."
21. Rule 328 of the Immigration Rules provides:-
"All asylum applications will
be determined by the Minister in accordance with the Geneva Convention on
recommendations made by the Minister.
Every asylum application made by a person at a port of airport in
Jersey, other than one refused under paragraph 345 will be referred by the
Immigration Officer for determination in accordance with these rules."
22. Rule 336 of the Immigration Rules provides:-
"An application which does
not meet the criteria set out at paragraph 334 will be refused. Where an application for asylum is
refused, the reasons in fact in law shall be stated in the decision and
information provided in writing on how to challenge the decision."
23. A number of cases have been put before me, the
principles from which are said to underpin the various grounds of appeal.
24. In South Bucks District Council and another
-v- Porter [2004] 1 WLR 1953: Lord Browne says:-
"The reasons for a decision
must be intelligible and they must be adequate. They must enable the reader to
understand why the matter was decided was it was and what conclusions were
reached on the "principle important controversial issues",
disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the
degree of particularity required depending entirely on the nature of the issues
falling for decision."
25. That case related to a planning
application. On the matter of an
immigration case, however, in R (Bahrami) -v- The Immigration Appeal
Tribunal [2003] EWHC 1453 the Court at paragraph 8 said:-
"What is essential is not
that an adjudicator should deal with every point at length, but that the
determination should be sufficiently reasoned to enable a claimant, his
advisers, and any appellate or reviewing body, to see why the claimant lost on
a particular issue. If that
determination satisfies that test, it will usually be the case that the more
schematic approach, formulated by Schiemann J in Amin, does not need to
be considered. In considering the
determination of the adjudicator, it is appropriate for the court to read it as
a whole, analytically but without pedantry¸ in a common sense way. At the same time, the court must resist
the temptation to engage in any conscious or subconscious rewriting of the
adjudicator's determination."
26. It is clear from the Amin case referred
to in Bahrami above that adjudicators should indicate in their decisions
what evidence they accept, what evidence they reject, whether there is evidence
as to which they cannot make up their mind whether or not they accepted and
what, if any, evidence the regard as irrelevant.
27. The Minister's reasons, articulated first
orally, then informally and then formally, are roundly attacked by the
Applicant and criticised as is apparent on the grounds of the application
referred to above. This is not the
application for judicial review itself and therefore I do not need to consider
the criticisms in detail and, indeed, it is apparent that a number of the
grounds argued for by the Applicant overlap.
28. It is also right to note that the Minister
robustly defends those attacks and resists the application for leave.
29. However, applying the tests that I have
referred to above, it seems to me that the consequences to the Applicant of the
decision are profound and in my judgment there is an arguable ground for
judicial review having a realistic prospect of success. Naturally, I do not pre-judge the
strength of such an argument.
30. In my view, there is no alternate remedy and
there is no discretionary bar such as delay because the application for leave
was brought within three months of the preparation of the final reasons.
31. Accordingly I grant the Applicant leave to seek
judicial review of the Decision on all grounds and set out therein. The effect of the Decision is stayed
until that judicial review shall have been determined.
Authorities
X
-v- Minister for Home Affairs [2018] JRC 222.
J
-v- His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A.
Human Rights (Jersey) Law 2000.
Immigration Jersey Rules
South Bucks District
Council and another -v- Porter [2004] 1 WLR 1953
R (Bahrami)
-v- The Immigration Appeal Tribunal
[2003] EWHC 1453
