C.M. (Zimbabwe) v The Chief International Protection Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 May 2018
• Neutral Citation: [2018] IEHC 410
• Court: High Court
• Docket Number: [2017 No. 961 J.R.]
• Date: 10 May 2018

[2018] IEHC 410

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 961 J.R.]

BETWEEN

C.M. (ZIMBABWE)

APPLICANT

AND

THE CHIEF INTERNATIONAL PROTECTION OFFICER

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Immigration and asylum – International protection – Interview – Applicant seeking mandamus, certiorari, declarations and injunctions – Whether the applicant was entitled to be furnished with notes of an interview prepared by the IPAT

Facts: The applicant arrived in the State from Zimbabwe in April, 2016 and applied for asylum. The asylum application was refused in October, 2016. The applicant then appealed to the Refugee Appeals Tribunal. In December, 2016, the International Protection Act 2015 was commenced. As a result of the transitional provisions, he was deemed to have made an application for international protection and was interviewed in September, 2017 by the International Protection Office (IPO). On 25th September, 2017, the applicant's solicitor called on the IPO to provide access to a record of the interview with a view to making post-interview submissions. On 26th September, 2017, the applicant was interviewed. On 18th October, 2017, the applicant's solicitor wrote further and stated that she was aware from a letter of 6th October, 2017 to another client that "it is the policy of the IPO...not to release the notes from an applicant's substantive interview prior to the application being finalised". The IPO ultimately gave a substantive reply on 13th November, 2017 which did not refer to such a "policy" but stated simply that "there is no statutory obligation on this office to make such interview notes available in advance of a recommendation being issued. We do not propose to do so at this stage. Our decision is based on previous jurisprudence of the Superior Courts in this regard". Clarification was then sought as to what jurisprudence the IPO had in mind and in further correspondence dated 1st December, 2017 the IPO stated that the relevant case was J.R.H. v Minister for Justice, Equality and Law Reform [2006] IEHC 355. On 11th December, 2017, these proceedings were instituted and an injunction granted preventing finalisation of the IPO recommendation. The key issue was whether the applicant was entitled to be furnished with notes of the interview, prepared by the IPAT, after that interview took place but before a report was prepared thereon, in order to enable post-interview submissions to be made on his behalf. Reliefs of mandamus, certiorari, declarations and injunctions were sought in the statement of grounds all relating to this one issue.

Held by the High Court (Humphreys J) that the EU law points raised were clearly insubstantial and acte clair in that they had already been determined by the CJEU, so a reference did not arise, and the national law points had already been determined by the Supreme Court in J.R.H.

Humphreys J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of May, 2018

1 The applicant arrived in the State from Zimbabwe in April, 2016 and applied for asylum. He completed a questionnaire and attended for a s. 11 interview. The asylum application was refused in October, 2016. The applicant then appealed to the Refugee Appeals Tribunal. In December, 2016, the International Protection Act 2015 was commenced. As a result of the transitional provisions, he was deemed to have made an application for international protection and was interviewed in September, 2017 by the International Protection Office (IPO).

2 On 25th September, 2017, the applicant's solicitor called on the IPO to provide access to a record of the interview with a view to making post-interview submissions. On 26th September, 2017, the applicant was interviewed. On 18th October, 2017, the applicant's solicitor wrote further and stated that she was aware from a letter of 6th October, 2017 to another client that ' it is the policy of the IPO...not to release the notes from an applicant's substantive interview prior to the application being finalised'. The IPO ultimately gave a substantive reply on 13th November, 2017 which did not refer to such a ' policy' but stated simply that ' there is no statutory obligation on this office to make such interview notes available in advance of a recommendation being issued. We do not propose to do so at this stage. Our decision is based on previous jurisprudence of the Superior Courts in this regard'.

3 Clarification was then sought as to what jurisprudence the IPO had in mind and in further correspondence dated 1st December, 2017 the IPO stated that the relevant case was J.R.H. v. Minister for Justice, Equality and Law Reform [2006] IEHC 355 [2009] 4 I.R. 474. On 11th December, 2017, the present proceedings were instituted and an injunction granted preventing finalisation of the IPO recommendation.

4 I have heard helpful submissions from Mr. Michael Conlon S.C. (with Ms. Eve Bourached B.L.) for the applicant and from Mr. Daniel Donnelly B.L for the respondent.

Essential issue

5 The key issue is whether the applicant is entitled to be furnished with notes of the interview, prepared by the IPAT, after that interview takes place but before a report is prepared thereon, in order to enable post-interview submissions to be made on his behalf. Reliefs of mandamus, certiorari, declarations and injunctions are sought in the statement of grounds but they all relate to this one issue.

Conceptual distinction between interference with rights and a positive duty on the State

6 An important context here is that there is no positive right to make post-interview submissions. Section 35(11) says that the IPO is not precluded from receiving post-interview submissions, but that is very much not a positive invitation to make such submissions and is certainly not a trigger for a whole further process in every case or even in most cases.

7 In terms of what has changed since the Supreme Court rejected an analogous right in J.R.H., one major aspect of the jurisprudential landscape that has evolved is the emphasis on proportionality set out in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 [2010] 2 I.R. 701 [2011] 2 I.L.R.M. 157, particularly per Denham J., as she then was, at pp. 751 – 752: 'When a decision maker makes a decision which affects rights the court could consider whether the effect on the rights of the applicant would be so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.' This principle could be of some relevance if the IPO tried to stop an applicant from recording an interview. It seems to me to be of significantly less relevance if an administrative body postpones handing over notes until after the decision where there is no positive right to make post-interview submissions, in circumstances where the routine handing-over of such notes would create a significant administrative burden. It seems to me that J.R.H. is not necessarily determinative if a proportionality challenge based on Meadows were to be launched in relation to a hypothetical prohibition on tape-recording at this stage in the evolution of the jurisprudence relating to international protection. I am not prejudging such a challenge but in such a context, Meadows is a new development which would have to be given due weight and consideration and in those circumstances the decision of the Supreme Court in J.R.H. would not necessarily be determinative. Such considerations do not arise here. The court can, it seems to me, give at least some, although not necessarily decisive, weight to the possible consequences of finding for the applicant.

8 Mr. Donnelly submits that the furnishing of notes will create a further layer of submissions by applicants. I am informed that the average time interval between interview and s. 39 report on Mr. Donnelly's instructions is in the order of four to five weeks. Allowing a procedure whereby notes have to be furnished would in all likelihood interpose a further round of submissions in the majority of cases. Those submissions will have to be considered and the net result will most likely be a significant slowing down of the whole process. Furthermore, the first set of representations will almost inevitably become more exiguous because applicants will say they will have to wait to see what the applicant said at interview before they can supplement the submissions. In addition, inconsistencies will inevitably appear between the first and second set of representations, which will presumably provoke a further round of complaints by applicants if such inconsistencies are relied on. As Mr. Donnelly describes the...