The High Court has refused one ground of a Georgian woman’s judicial review challenge to a decision refusing her permission to remain in Ireland and a consequent deportation order. It adjourned two other grounds pending the outcome of a Court of Appeal case, with costs reserved.
The judgment, delivered by Ms Justice Tara Burns on 9 September 2021, concerned a review decision made under section 49(7) of the International Protection Act 2015. The woman had entered the State in December 2015 and sought asylum. Her protection claims were refused at first instance, and the International Protection Appeals Tribunal (IPAT) affirmed those decisions in December 2018. The Minister affirmed an earlier refusal of permission to remain in August 2019 and issued a deportation order later that month.
The judicial review challenged the section 49(7) decision and the deportation order. One of the grounds argued that the Minister had adopted an incorrect standard of proof when deciding whether returning the applicant would breach the statutory prohibition on refoulement. The applicant argued that a lower standard should apply to that assessment.
The court rejected that ground. It held that facts relevant to a refoulement decision are established on the balance of probabilities, with the benefit of the doubt where appropriate. The judge found no basis to conclude that the Minister had failed to apply the required “serious risk” test or that the approach was incompatible with Article 3 of the European Convention on Human Rights. The applicant had not established invalidity in the section 49(7) decision or the deportation order on this ground.
At the hearing, the applicant also advanced arguments about the Minister’s reasons, the timing of the refoulement decision and whether the Minister had personally considered relevant information. The judgment said these arguments were not among the grounds for which leave to seek judicial review had been granted, so the court had no jurisdiction to determine them. The judge added that, in any event, the section 49(4) and section 49(7) decisions read together gave reasons, and the evidence did not establish that the Minister had failed to consider the case’s facts.
The remaining two grounds concerned a section 35 report that the court found did not comply with the Act. The parties agreed those grounds depended on the Court of Appeal’s decision in a separate case, HK v Minister for Justice. The High Court adjourned them into a holding list until that ruling. Costs were reserved, and the parties were given liberty to return to court about costs if needed after the appeal decision.