X v The Minister for Justice and Equality (Approved)

Factual and Procedural Background

The Applicant, a national of Nigeria, claims to be bisexual or homosexual, although this claim was not accepted by the Minister for Justice and Equality (the Respondent). Consequently, the Applicant failed to obtain a refugee declaration, subsidiary protection, or permission to remain in the State, and a deportation order was issued against him.

In May 2017, a permission to remain (PTR) decision was issued alongside a section 39 report containing an administrative error naming the wrong person in the recommendation section. This error was corrected by a subsequent section 39 report issued shortly after. The Applicant sought to challenge this decision more than two years later, in November 2019.

The Applicant also challenged the deportation order issued in September 2019, contending procedural and substantive irregularities, including alleged failures to properly consider his sexual orientation in the context of non-refoulement protections under the International Protection Act 2015.

Judicial review proceedings were initiated, including an earlier unsuccessful challenge to an International Protection Appeals Tribunal decision. The current proceedings focus on two principal questions related to the legality of the PTR decision and the deportation order.

Legal Issues Presented

1. Whether the permission to remain decision, made under section 49 of the International Protection Act 2015 and dated 30th May 2017 (and affirmed on 24th July 2019), was vitiated for illegality as having been made prior to the recommendation under section 39(3)(c) of the Act.
2. Whether the deportation order was vitiated by the Respondent’s failure to provide a written decision of his opinion under sections 50 and 51(3) of the International Protection Act 2015.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that the PTR decision was unlawful because it was made before the section 39 recommendation was issued.
• The Applicant argued that the deportation order was issued without adequate notice of the Minister’s reasoning under section 50, thus violating procedural fairness.
• He asserted that the Respondent failed to properly consider country of origin information and submissions made on 30th July 2019 regarding the risk of refoulement due to his sexual orientation.
• The Applicant sought an extension of time to challenge the PTR decision, asserting that the time to challenge should run from the affirmation of the decision in July 2019.

Respondent's Arguments

• The Respondent acknowledged an administrative error in the initial section 39 report but submitted that it was minor, swiftly corrected, and did not invalidate the decision.
• The Respondent argued that the Applicant had full opportunity and legal advice throughout the asylum process and failed to raise the error in a timely manner.
• It was contended that the section 50 submissions made in July 2019 were duly considered before the deportation order was signed.
• The Respondent maintained that the Applicant was provided with reasons for the deportation order in the notification letter dated 2nd October 2019, satisfying the requirements of section 51(3).
• The Respondent denied that the PTR decision was unlawfully made prior to the section 39 recommendation, asserting that the corrected report and subsequent procedures complied with legal requirements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered whether there were substantial grounds to contend that the impugned actions were invalid or ought to be quashed. It found that the administrative error in the section 39 report—naming the wrong person in the recommendation section—was minor, obvious, and swiftly corrected. The substance of the report clearly related to the Applicant’s case, and the error did not undermine the validity of the decision.

Secondly, the court examined whether there was good and sufficient reason to extend the 28-day statutory period for challenging the decision. It concluded that no such reason existed. The Applicant had throughout the process access to legal advice and ample opportunity to raise the issue but failed to do so without justification. The delay sought was approximately 30 times the prescribed period, which the court found excessive and unjustifiable.

Regarding the first legal issue, the court declined to consider the alleged illegality of the PTR decision being made prior to the section 39 recommendation due to refusal to extend time.

On the second issue concerning the deportation order, the court analyzed the statutory provisions requiring the Minister to notify the Applicant of the making of the deportation order and the reasons for it. The court found that the Applicant was provided with a clear notice explaining the reasons, including the refusal of protection and permission to remain, the absence of voluntary return, and the Minister’s satisfaction with compliance with non-refoulement obligations.

The court further noted that the Applicant’s submissions under section 50 regarding risk of refoulement were considered in detail by the International Protection Office prior to the deportation order issuance, including a supplementary note to file. The Minister’s opinion that the Applicant was not at risk of refoulement was adequately founded on country of origin information and the Applicant’s case history.

The court emphasized that procedural fairness does not require formalistic reasons where the affected person is aware of the basis of the decision and has had opportunity to respond. The Applicant was not left in the dark, as his sexual orientation claims were consistently disbelieved throughout the process, explaining the Minister’s conclusion.

Finally, the court acknowledged the broader moral ideal underpinning asylum law but noted that the issues raised regarding the Applicant’s credibility and conduct were not grounds for the current application and no relief could be granted on those bases.

Holding and Implications

The court DECLINED TO GRANT any of the reliefs sought by the Applicant in his notice of motion.

The court refused to extend the statutory time limit for challenging the permission to remain decision and dismissed the challenge to the deportation order on the grounds that the procedural requirements were satisfied and the decision was lawful.

This decision directly affects the parties by upholding the validity of the deportation order and related decisions but does not establish any new legal precedent or alter existing principles of judicial review, procedural fairness, or asylum law.