A.A. v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] IEHC 607 |
| Court | High Court |
| Date | 04 December 2014 |
[2014] IEHC 607
THE HIGH COURT
AND
Post-leave application for order of certiorari - Decision of the Minister for Justice and Equality - Application for subsidiary protection - European Communities (Eligibility for Protection) Regulations 2006- Directive 2004/83/EC (“Qualification Directive”) - Qualification or status of third country nationals as refugees or persons in need of international protection - Power of the Minister to accept or determine a subsidiary protection application
Facts The applicant is a Somali national. He arrived in Ireland in May 2005 and immediately claimed asylum. His application was refused and he was issued a proposal to deport letter. This letter was sent prior to the coming into force in Irish law of the “Qualification Directive”. The applicant was given leave to remain for one year. This was extended several times. He then made an application for subsidiary protection in June 2013. This was subsequently refused. The reason for this: Recital 9 of the Directive precluded the consideration of a subsidiary protection application from a person with a right to reside in a Member State. The applicant sought a review of the decision yet the Ministers position remained the same. The Minister went on to adopt a position in accordance with Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44 in that she had no discretion to accept an application for subsidiary protection from the applicant since the applicant had no right to apply under the terms of the Regulation. The applicant submitted the Minister was not, as a matter of law, permitted to seek to change his/her reasons for a decision once the decision has been the subject of an application for judicial review. The Court therefore had to decide on a preliminary matter: whether the Minister had power to accept and determine the subsidiary application in light of his circumstances.
Held The applicant was notified of the Minister”s intention to deport by letter; this was before the Protection Regulations came into force. It is clear from the judgment of Fennelly J in Izevbekhai that persons who received a proposal to deport before the coming into force of the Regulations are not covered by the terms of the Regulations and are consequently not eligible to apply for subsidiary protection. The classes of persons to whom the Regulations apply are strictly limited. The Minister has no discretion to accept applications from persons who are not specified as eligible. The judge was satisfied that because the applicant received his notification of intention to deport pursuant to s. 3(2)(f) of the Immigration Act 1999, prior to the coming into force of the Regulations, he was not a person to whom the Regulations applied and was therefore not eligible to apply for subsidiary protection. Furthermore, the Minister did not have the power to accept the applicant”s application since he was not an eligible person under the Regulations. The Minister was acting in excess of jurisdiction. The judge deemed her decision void and of no effect. In such circumstances, the Court would ordinarily grant certiorari. However, the judge said it would be futile to quash the Minister”s decision because it would be of no benefit to the applicant. The court could not grant an order of mandamus compelling the respondent to accept and consider the applicant”s submission because the Protection Regulations, as interpreted by the Supreme Court in Izevbekhai, precluded the making of such an order. The court could not order the respondent to do something which she does not, in law, have the power to do.
-Application for judicial review rejected; relief sought refused
JUDGMENT of Mr. Justice Barr delivered on the 4th day of December, 2014
1. This is a post-leave application for an order of certiorari quashing the respondent's decision of 1 st October, 2013, not to process his application for subsidiary protection and for an order of mandamus compelling the respondent to consider the applicant's application for subsidiary protection pursuant to the provisions of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006) ("the Protection Regulations"), which transposed Council Directive 2004/83/EC of 29 th April, 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive").
2. The applicant is a 39-year-old Somali national. He arrived in Ireland in or around 9 th May, 2005, and applied for asylum the following day. His claim for asylum was rejected by the RAT in a decision dated 25 th January, 2006. He was issued with a proposal to deport by letter dated 13 th February, 2006. This letter was sent prior to the coming into force in Irish law of the Qualification Directive. The Qualification Directive required Member States to enact the laws, regulations, and administrative provisions necessary to comply with the Directive before 10 th October, 2006; the Directive was implemented in Ireland by the Protection Regulations on 10 th October, 2006. It was at this point that the facility for the making of an application for subsidiary protection was introduced in Ireland.
3. On 6 th March, 2006, the applicant submitted representations as to why he should be granted temporary permission to remain in the State. By a decision dated 11 th May, 2009, the Minister decided to grant the applicant leave to remain in the State for a period of one year. This permission has since been extended on a number of occasions. No reason was given for the initial decision to grant the applicant leave to remain or for the subsequent decisions to renew his permission to remain. The applicant currently has leave to remain in the State until 13 th May, 2015.
4. Having learnt of the subsidiary protection regime, the applicant consulted a solicitor and made a subsidiary protection application by letter dated 11th June, 2013. On 27 th June, 2013, the respondent refused to consider this application. The reason for this refusal was that, in the respondent's view, Recital 9 of the Qualification Directive precluded the consideration of a subsidiary protection application from a person with a right to reside in a Member State. Recital 9 of the Directive provides:
Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of the Directive.
No other reason was given.
5. By letter dated 20 th September, 2013, the applicant sought a review of the Minister's refusal to consider his application. However, the respondent's position remained unaltered and the applicant was notified of this by letter dated 1 st October, 2013. The present proceedings were then instituted and McDermott J. granted leave to apply for judicial review ex-parte on 14 th November, 2013.
6. The Minister does not now stand over the reason given for not accepting the applicant's subsidiary protection application submitted on 11 th June, 2013. Instead, the Minister now adopts the position that, in accordance with the interpretation of the Protection Regulations by the Supreme Court in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44, she had no discretion to accept an application for subsidiary protection from the applicant since the applicant had no right to apply for subsidiary protection under the terms of the Regulations.
7. The applicant submitted that the Minister is not, as a matter of law, permitted to seek to change his reasons for a decision once the decision has been the subject of an application for judicial review. The applicant cites Mullholland v. An Bord Pleanala (No. 2) [2006] 1 IR 453; EMI Records (Ireland) Limited v. The Data Protection Commissioner [2013] IESC 1; and R. v. City of Westminster [1996] 28 HLR 819, in support of this argument. Applying these authorities, the applicant contends that the Minister's advancement of new reasons before the court in the present proceedings and the abandonment of the sole original reason given is such as to entitle the applicant to certiorari.
8. The respondent argues that the applicant's contention that the Minister has substituted new reasons for his refusal in place of the reason originally stated is misconceived. The respondent submits that what has in fact occurred is that the Minister has now recognised that, in accordance with the terms of the Protection Regulations as interpreted in the Supreme Court's decision in Izevbekhai, she did not have the power to accept the applicant's subsidiary protection application dated 11 th June, 2013. Accordingly, the respondent argues that the precise reasons given by the Minister for not entertaining the application are ultimately not material to the question whether or not she was empowered to accept it.
9. The respondent points out that if the court accepts the Minister's position that she did not have discretion to accept the application, the court would be acting in vain if it made an order quashing the decision of 27 th June, 2013. The respondent states that the inevitable outcome would be that the Minister would refuse to accept the application again on the basis that the application had not been made in accordance with the Protection Regulations and that she did not have discretion to accept it. The respondent...
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