BL v The International Protection Appeals Tribunal, The Minister for Justice, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 03 February 2021
• Neutral Citation: [2021] IEHC 86
• Docket Number: Record No.: 2020/7/JR
• Court: High Court
• Date: 03 February 2021

Between:

BL

Applicant

and

The International Protection Appeals Tribunal, The Minister for Justice, Ireland and The Attorney General

Respondents

[2021] IEHC 86

Record No.: 2020/7/JR

THE HIGH COURT

JUDICIAL REVIEW

International protection – Judicial review – Rationality – Applicant seeking an order of certiorari of the first respondent’s recommendation to the second respondent – Whether the applicant failed to meet the requirements of s. 22 of the International Protection Act 2015

Facts: The applicant, on 30 May 2019, made an application pursuant to s. 22 of the International Protection Act 2015 seeking re-admission to the international protection process on the basis that there was a risk that he would suffer harm including imprisonment if returned to the Democratic Republic of Congo (the DRC) as a failed asylum seeker and/or that he would be returned to a significantly deteriorated human rights situation. An International Protection Officer made a recommendation to the second respondent, the Minister for Justice, to refuse that application. On appeal, the first respondent, the International Protection Appeals Tribunal, affirmed that recommendation. Leave to apply by way of judicial review seeking an order of certiorari of the first respondent’s recommendation to the second respondent was granted by the High Court on 3 February 2020. The challenges to the first respondent’s recommendation were that it: (a) failed to have regard to an earlier decision of the first respondent which was of particular relevance to the application; (b) found that there was no evidence before it which would suggest that the applicant would be identifiable as a failed asylum seeker upon his return in circumstances where it was not ascertained as to how it was proposed to return to the applicant; (c) relied on “old” country of origin and other information dating from 2012 and 2015 and failed to properly assess the county of origin information and the risks involved for the applicant; and (d) concluded that the applicant failed to meet the requirements of s. 22 of the 2015 Act.

Held by Burns J that it was not appropriate that the Court entertain submissions which were contrary to the findings of the determination which the Court had been asked to review. Burns J was of the opinion that the first respondent’s determination that the applicant failed to establish that it was significantly more likely that he would qualify for international protection was an irrational conclusion to have reached. Having regard to the Guardian Report alone, Burns J was of the view that the information contained therein was of a nature which made it significantly more likely that he would qualify for international protection; that did not mean he would ultimately succeed when the application is considered, but it is of a nature which meets the s. 22 test. In that regard, Burns J noted that another s. 22 application before the first respondent relating to a different applicant who raised a similar argument regarding being returned to the DRC as a failed asylum seeker was successful; the lack of consistency raised a concern when the question being determined is not whether an application will be successful in such a claim but rather whether the new claim and material make it significantly more likely that an application for international protection would be successful. Burns J noted that the decision maker in this case failed to deal at all with the country of origin information which appeared to be of particular significance to the other decision maker. Burns J held that in light of the decision maker’s dismissal of the other decision maker’s decision regarding s. 22, an onus arose to set out why those reports were not of significance to her. In addition, the Court was also of the view that the first respondent’s determination in respect of this aspect of the applicant’s claim was irrational in its consideration of the Guardian article dated March 2019, or at the very least failed to provide sufficient reasons which showed a pathway as to how the dismissal of this information was reached in a rational manner.

Burns J held that the Court would grant the applicant the relief sought and make an order for the applicant’s costs as against the respondent to be adjudicated upon in default of agreement.

Relief granted.

JUDGMENT of Ms Justice Tara Burns delivered on 3rd day of February, 2021

General

1 The Applicant is a national of the Democratic Republic of Congo (hereinafter referred to as “the DRC”) who on arrival within the State made an application for asylum on 19 March 2015. His application was refused by ORAC on 13 January 2016. This decision was appealed but arising from the commencement of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”), the Applicant's application for protection was forwarded to the International Protection Office who determined his subsidiary protection application against him on 13 September 2017. The Applicant appealed to the First Respondent who determined both his refugee and subsidiary protection claims against him on 20 November 2017. Thereupon, the Applicant brought an application before the Second Respondent seeking permission to remain within the State pursuant to s. 49(9) of the 2015 Act which was refused on 26 April 2018 On 5 June 2018, a Deportation Order issued against the Applicant which has not been enforced. No explanation has been placed before me as to what steps, if any, were taken on foot of the Deportation Order.

2 On 30 May 2019, an application pursuant to s. 22 of the 2015 Act was made by the Applicant seeking re-admission to the international protection process on the basis that there was a risk that the Applicant would suffer harm including imprisonment if returned to the DRC as a failed asylum seeker and/or that he would be returned to a significantly deteriorated human rights situation. An International Protection Officer (hereinafter referred to as “an IPO”) made a recommendation to the Second Respondent to refuse this application. On appeal, the First Respondent affirmed this recommendation.

3 Leave to apply by way of Judicial Review seeking an Order of Certiorari of the First Respondent's recommendation to the Second Respondent was granted by the High Court on 3 February 2020.

4 The challenges to the First Respondent's recommendation are, in summary, that it:-

The Test to be met on a s. 22 application

• a) failed to have regard to an earlier decision of the First Respondent which was of particular relevance to the application;.

• b) found that there was no evidence before it which would suggest that the Applicant would be identifiable as a failed asylum seeker upon his return in circumstances where it was not ascertained as to how it was proposed to return to Applicant;

• c) relied on “old” country of origin and other information dating from 2012 and 2015 and failed to properly assess the County of Origin information and the risks involved for the Applicant;

• d) concluded that the Applicant failed to meet the requirements of s. 22 of the 2015 Act;

5 Section 22 of the 2015 Act provides inter alia:-

“(1) A person shall not make a subsequent application without the consent of the Minister, given under this section.

(2) An application for the consent referred to in subsection (1) shall include—… (d) all relevant information being relied upon by the person concerned to demonstrate that he or she is entitled to international protection, and (e) a written statement drawing to the Minister's attention any new elements or findings, which have arisen since the determination of the previous application concerned, relating to the examination of whether the person is entitled to international protection.

4) An [IPO] shall recommend to the Minister that the Minister give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that—

(a) since the determination of the previous application concerned, new elements or findings have arisen or have been presented by the person which make it significantly more likely that the person will qualify for international protection, and the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application,

(5) An [IPO] shall recommend to the Minister that the Minister refuse to give his or her consent to the making of a subsequent application where, following a preliminary examination of an application under subsection (2), the officer is satisfied that … paragraph (a)… of subsection (4) applies in respect of the person.”

The Act further provides that in the event of a determination pursuant to s. 22(4), an appeal lies to the International Appeals Tribunal who may affirm or set aside the recommendation of an IPO. Pursuant to s. 22(13) and (15) of the 2015 Act, the Second Respondent does not have discretion in the matter and must adopt the recommendation by the IPO or the Second Respondent, on appeal.

The Test pursuant to s. 22 of 2015 Act

6 Counsel for the Applicant has referred to AA v. Minister for Justice [2012] IEHC 63 wherein Cross J stated that “in order for the Applicant to succeed in his section 17(7) application to the Minister — providing he has satisfied the requirements of new information… what must be established is not very onerous.” (Section 17(7) of the Refugee Act 1996, as amended, mirrors the requirements of s. 22 of the 2015 Act).

7 However, the case law regarding s. 22 is far more extensive than AA. The dicta of Bingham MR in R v. Secretary of State for the Home Department ex parte Onibiyo [1996] EWCA Civ 1338 was endorsed by the High Court in EMS v. Minister for Justice [2004] IEHC 398 wherein the applicable test was set out as follows:-

“The acid test must...