D (H I)(A Minor) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 09 February 2011
• Neutral Citation: [2011] IEHC 33
• Court: High Court
• Date: 09 February 2011

[2011] IEHC 33

THE HIGH COURT

[No. 1261 J.R./2008 and No. 56 JR./2009]

D (H I)(A Minor) v Refugee Applications Commissioner & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN/

H. I. D. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, E. D.)

AND

B. A.

APPLICANTS

AND

REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S12(1)

REFUGEE ACT 1996 S15

REFUGEE ACT 1996 S17(1)

EEC DIR 2005/85ART 23

EEC DIR 2005/85 CHAP V

EEC DIR 2004/83

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S16

EEC DIR 2005/85ART 15

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EUROPEAN COMMUNITIES ACT 1972

CMSN v GERMANY 1985 ECR 1661 1986 3 CMLR 579

SEX DISCRIMINATION LAWS, IN RE 1985 ECR 1459 1986 2 CMLR 588

CAIRDE CHILL AN DISIRT TEORANTA v BORD PLEANALA & ORS 2009 2 ILRM 89 2009/8/1756 2009 IEHC 76

EEC DIR 2005/85ART 39

EEC DIR 2005/85ART 8.3

EEC DIR 2005/85ART 9.2

EEC DIR 2005/85 ART 10.1

REFUGEE ACT 1996 S12

IMMIGRATION ACT 2003 S7(G)

REFUGEE ACT 1996 S12(1)(B)

REFUGEE ACT 1996 S12(1)(E)

REFUGEE ACT 1996 S12(4)

REFUGEE ACT 1996 S12(1)(M)

EEC DIR 2005/85ART 23.3

EEC DIR 2005/85 ART 23.4

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 3

TREATY OF ROME ART 234

EEC DIR 2005/85ART 2

EEC DIR 2005/85ART 4.1

EEC DIR 2005/85ART 5

EEC DIR 2005/85ART 8.2

EEC DIR 2005/85ART 9.1

EEC DIR 2005/85ART 12.1

EEC DIR 2005/85ART 13

EEC DIR 2005/85ART 14.1

EEC DIR 2005/85ART 14.2

EEC DIR 2005/85ART 15

EEC DIR 2005/85ART 18

EEC DIR 2005/85ART 23.1

EEC DIR 2005/85ART 23.2

EEC DIR 2005/85ART 39.1

EEC DIR 2005/85ART 39.2

EEC DIR 2005/85 ANNEX I

EEC DIR 2005/85 ART 23

REFUGEE ACT 1996 S13(7)(A)

REFUGEE ACT 1996 S13(8)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288

TREATY OF ROME ART 249

VAN DUYN v HOME OFFICE 1975 CH 3581975 2 WLR 760 1975 3 AER 190 1974 ECR 1337 1975 1 CMLR 1

EEC DIR 2005/85 RECITAL 11

EEC DIR 2005/85 CHAP II

EEC DIR 2005/85 ART 8.1

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 18

TREATY OF ROME ART 12

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21

COLLINS v SECRETARY OF STATE FOR WORK & PENSIONS 2005 QB 145 2004 3 WLR 1236 2004 AER (EC) 1005 2004 ECR I-2703 2004 2 CMLR 8

EEC DIR 2005/85 RECITAL 17

EEC DIR 2005/85 RECITAL 18

EEC DIR 2005/85 RECITAL 19

EEC DIR 2005/85 RECITAL 20

EEC DIR 2005/85 RECITAL 21

EEC DIR 2005/85ART 29

EEC DIR 2005/85ART 30

EEC DIR 2005/85 ANNEX II

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PROTOCOL 21 ART 3

EEC DIR 2005/85ART 15.3(A)

EEC DIR 2005/85 RECITAL 27

G (C) v BULGARIA 2008 47 EHRR 51

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009/11/2463 2009 IEHC 77

ADAN v REFUGEE APPLICATIONS CMSR & REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 23.2.2007 2007/1/110 2007 IEHC 54

REFUGEE ACT 1996 S13(6)

EEC DIR 2005/85ART 39.3(A)

EEC DIR 2005/85 ART 39.4

REFUGEE ACT 1996 S16(6)

EEC DIR 2005/85 ART 8.2(B)

REFUGEE ACT 19961996 SCHED 2

REFUGEE ACT 1996 S16(2)(B)

REFUGEE ACT 1996 S16(11)

BROEKMEULEN v HUISARTS REGISTRATIE COMMISSIE 1981 ECR 2311 1982 1 CMLR 91

DORSCH CONSULT INGENIEURGESELLSCHAFT MBH v BUNDESBAUGESELLSCHAFT BERLIN MBH 1998 AER (EC) 262 1997 ECR I-4961 1998 2 CMLR 237

REFUGEE ACT 1996 S7A

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S15(2)

C (XL) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 10.2.2010 2010 IEHC 148

IRISH NATIONALITY & CITIZENSHIP ACT 1956

IMMIGRATION

Asylum

Application - Examination - Accelerated process - Priority given to applications originating in Nigeria - Whether unlawful acceleration - Whether direction unlawful - Standards of processing and scrutiny required - Whether direction incompatible with provisions governing prioritisation or acceleration of asylum applications - Whether applicants at procedural disadvantage - Whether direction acted ultra vires - Whether member states entitled to organise management of asylum process - Commission v Germany Case 23/84 [1985] ECR 1661; Commission v Germany (Case 23/83) [1985] ECR 1459 and Cairde Chill an Disirt Teo v An Bord Pleanála [2009] IEHC 76, (Unrep, Cooke J, 6/2/2009) considered- Prioritisation based on country of origin - Whether discrimination - Whether unlawful - Objective justification - Whether difference of treatment objectively justified - Whether difference in treatment had any impact on rights of asylum seeker - Collins v Secretary of State for Work and Pensions [2004] ECR I-2703 considered - Effective remedy - Determination of asylum applications - Whether tribunal appeal combined with entitlement to apply for judicial review before High Court provided effective remedy - Nature and function of refugee appeals tribunal -Independence of tribunal - Whether tribunal "court or tribunal" for purposes of directive - CG v Bulgaria (2008) 47 EHRR 51; BNN v Minister for Justice [2008] IEHC 308, [2009] 1 IR 719; AD v Refugee Applications Commissioner [2009] IEHC 77, (Unrep, Cooke J, 27/1/2009); NAA v Refugee Applications Commissioner [2007] IEHC 54, [2007] 2 IR 787; Broekmeulen v Huisarts Registratie Commissie (Case 246/80) [1981] ECR 2311 and Dorsch Consult v Bundesbaugesellschaft Berlin (Case 54/96) [1997] ECR I-4961 considered - Refugee Act 1996 (No 17), ss 12, 13 and 17 - Council Directive 2005/85/EC, art 23 - Council Directive 2004/83/EC article 30 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518) - Treaty on the Functioning of the European Union, article 267 - Immigration Act 2003 (No 260) s 7(g) - Relief refused (2008/1261JR & 2009/56JR - Cooke J - 9/2/2011) [2011] IEHC 33

D(H I)(A Minor) v Refugee Applications Commissioner

Facts: The applicant sought a declaration that their application for asylum status had not been determined by means of a procedure which complied with the minimum standards required to be met by Council Directive 2005/85/EC. The applicant claimed that the application had been unlawfully prioritised in a Direction, discriminated against him on nationality and that the procedure had deprived the applicant of an effective remedy. A negative finding of credibility had been made against the account on the grounds of credibility. The applicant disputed the independence of the Refugee Appeals Tribunal (RAT) on account of its links to the Office of Refugee Appeals Commissioner (ORAC) and the respondent Minister.

Held by Cooke J. that the reliefs sought would be refused. The challenge to the Directive was unfounded. The applicant had failed to demonstrate how the procedures conducted had not complied with the provisions of the Directive. The limitations contended for were not evident in the Directive. Any discrimination as a matter of nationality had been mandated for organisational purposes. The RAT was statutorly independent as a matter of law.

Reporter: E.F.

1 1. These two cases were heard together because they gave rise to the same two issues of law and were representative of a substantial number of other cases which await determination in the Asylum List. Leave to bring the present applications for judicial review was granted by the Court by two orders of 19 ^th January 2010. In the first above case ("the First Case") leave was granted to seek, inter alia, orders of certiorari to quash (i) a Report by the Office of the Refugee Applications Commissioner (ORAC) under s. 13 of the Refugee Act 1996 (as amended) ("the Act") dated 20 August 2008 which had recommended to the third named respondent (the Minister) that the applicant minor should not be declared to be a refugee under s. 17 of the Act; and (ii) a Direction given by the Minister under s. 12(1) of the Act dated 11 December 2003 that priority be given to the examination and determination of applications of asylum originating in Nigeria.

2 2. In the second above case ("the Second Case") leave was granted to seek orders of certiorari in respect of the same Direction of the Minister and in respect of an appeal decision of the second named respondent ("the RAT",) under s. 15 of the Act dated 25 ^th November 2008 which rejected her appeal against a report and negative recommendation of the ORAC. For the reasons explained in the judgment of the Court of 19 ^th January 2010 leave was refused for this applicant to seek review of that report as well.

3 3. Leave was granted to seek those reliefs on the same single, two-fold ground as follows:

"The applicant's claim for a declaration of refugee status under s. 17(1) of [the Act] has not been lawfully determined by means of a procedure which complies the minimum standards required to be met by Council Directive 2005/85/EC of 1 ^st December 2005 in that:"

(a) The processing of the application has been unlawfully prioritised or accelerated as a result of a Direction given by [the Minister] dated 11 ^th December 2003 which is incompatible with the provisions of the said directive and in particular Article 23 thereof;

(b) The said procedure deprives the applicant of an effective remedy against the first instance determination of [the] application before a court or tribunal in compliance with the requirements of Chapter V of the Directive."

4 4. In the parties' submissions the two issues thus raised have been referred to respectively as the "Prioritisation Issue" and the "Effective Remedy Issue". They arise, in effect, out of the need to reconcile...