No illegality in Minister’s deportation decisions concerning convicted terrorist

Judicial review – asylum and immigration – challenge to the decision of the Minister for Justice to issue a deportation order and refusing to revoke the deportation order – Minister overturned decision of the Refugee Appeals Tribunal that the applicant was at risk of serious harm if returned to his country of origin - involvement in terrorist Islamist opposition - convicted of a number of terrorism-related offences - sentenced to three life sentences and two death sentences - applied for asylum under the false name - fraudulent application for refugee status - granted a declaration of refugee status – travel document - arrested in Andorra for fraud offences - convicted in France for terrorism offences – after serving sentence deported to Ireland - proposal to revoke the applicant’s Irish refugee status - materially false and misleading information - issued a proposal to deport – application to re-enter the protection process refused - subsidiary protection application refused - on the basis of the exclusion clause, rather than on the basis that there was no risk of harm - deportation order was made - country of origin information - arrested at Dublin Airport while attempting to board flight bound for Athens using a false Belgian identity document - sentenced to a term of imprisonment of 6 months – judicial review proceedings adjourned to allow him to apply for revocation of the deportation – Minister considered and refused the application to revoke – Court granted applicant leave to amend the statement of grounds to challenge the decision refusing to revoke the deportation order - role of the court in an article 3 case - effective remedy - the Constitution of Ireland should generally be construed where possible as affording rights (and requiring obligations) no less extensive than those in international law - necessary and appropriate for Irish courts to draw on supranational and international materials in order to derive assistance as to the scope and content of such natural rights - right to an effective remedy, involving independent review of a legally cognisable complaint, should be recognised as an unenumerated right under Article 40.3 of the Constitution – whether the Minister was bound by the view of the tribunal that the applicant would suffer serious harm if returned to his country of origin – whether the deportation decision is subject to EU law - at the time of the examination of his representations under section 3 of the Immigration Act, 1999 (as amended), the Applicant was no longer an applicant for refugee status under the terms of the 1951 Convention on the Status of Refugees and / or an applicant for subsidiary protection under the terms of S.I. 426 of 2013 / Directive 2004/83/EC - the application was not governed by EU law and, specifically, it was outside the scope of Directive 2004/83/EC – whether it is arbitrary to acknowledge that the Minister can determine refoulement issues in a manner contrary to the tribunal’s approach - application of the exclusion clause in effect transfers the final decision on serious harm from the tribunal to the Minister, and renders the tribunal’s views on harm or any other issue essentially obiter – to hold otherwise would be to give the tribunal decision an ongoing status not warranted by the statutory scheme - final outcome of the tribunal (in this case, rejection of the applicant’s claim) is binding on the Minister, not necessarily the reasoning process by which it got to that point – whether the applicant’s entitlement to an independent review of an art. 3 decision means that the tribunal view is binding - scrutiny can be provided either by an independent administrative body or by the courts - a conclusion that the ultimate decision falls to the Minister, subject to judicial review, rather than the tribunal, does not dilute the independence of the tribunal - Minister’s failure to follow the view of the tribunal is not unlawful and does not infringe any constitutional, EU or ECHR rights of the applicant – whether it is a breach of fair procedures to revisit the finding of the tribunal when this was not signalled to the applicant - Applicant was fully on notice of this issue in the section 3 process and addressed the same in the representations made to the Minister - constitutes sufficient notice that any argument against deportation - whether it is a breach of fair procedures to rely on country material not signalled to the applicant - depends on the nature of the material - whether the decision to favour certain country information over that preferred by the applicant is lacking in reasons - Minister is relying on more recent information and in particular on the specific elements of the new information quoted in the decision – whether the decision is unreasonable, given the evidence regarding incommunicado detention in the country concerned - detention by the security services in country of origin - real risk that terrorist suspects (and in some cases convicted prisoners) are held for periods in possibly secret detention centres and incommunicado - referred to two cases of persons held incommunicado and reportedly tortured in submissions – decisions of the ECtHR and how the decision of the Minister in the present case measures up against the analysis of the Strasbourg Court - Minister had more up-to-date country of origin material than that referred to by the Strasbourg court - reasonably open to the Minister having regard to both the personal circumstances of this particular applicant, and the totality of the country material - cured by the further consideration of the issue at the revocation stage – whether incorrect standard of proof was applied - entirety of the extensive reasoning adopted by the Minister - decision does not misstate the test - lack of candour - abuse of process - failure to explain why the material was not proffered earlier - complaint that the matter was treated as ad misericordiam - on a fair reading of the decision as a whole one could not take the view that the art. 3 points were in fact treated as merely ad misericordiam - did not actually taint the consideration of the revocation application - complaint that there was an incorrect decision that the Minister was applying a different standard to the tribunal - decision-maker gives a reason for taking a different view - alleged error in purporting to apply a judicial review test - referring to the judicial review test does not misstate the test for the decision-maker or render the decision unlawful, or liable to be quashed on judicial review - alleged failure to consider the Strasbourg and UK caselaw relied on - Minister did actually consider the material - alleged inadequate art. 3 assessment - existence of conflicting country information - Strasbourg caselaw – Minister’s conclusion was open to her on the full range of material available - alleged invalidity of, or lack of reasons in, the decision in the light of this material - essential elements to assessing an art. 3 claim - Minister can have regard to such material as she may decide to obtain proprio motu - decision does deal in a summary manner with the country situation - no illegality has been demonstrated - Alleged failure to be satisfied that improvements are significant and non-temporary - conclusion was not invalid by reference to any failure to consider whether, or find that, the changes were significant and non-temporary – Minister had regard to a large body of country material - material supports the view that the situation in his country of origin has improved step by step over a lengthy period of time - conclusion that this applicant is not at real risk of treatment contrary to art. 3 was lawfully open to the Minister.