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

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date19 January 2010
Neutral Citation[2010] IEHC 172
Docket Number[No. 1261 J.R./2008]
CourtHigh Court
Date19 January 2010

[2010] IEHC 172

THE HIGH COURT

[No. 1261 J.R./2008]
[No. 56 J.R./2009]
D (H I)(A Minor) & A (B) v Refugee Applications Commissioner & Ors
BETWEEN/
H.I.D. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.O.)
APPLICANT

AND

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

AND

BETWEEN/
B.A.
APPLICANT

AND

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

REFUGEE ACT 1996 S12(1)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17

EEC DIR 2005/85 ART 39

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

A (M I-O)(AN INFANT) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 14.1.2010 2010 IEHC 150

REFUGEE ACT 1996 S17(1)

EEC DIR 2005/85 ART 43

EEC DIR 2005/85 ART 15

EUROPEAN COMMUNITIES ACT 1972

EEC DIR 2004/83

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

CMSN v GERMANY 1985 ECR 1661 1986 3 CMLR 579

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

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 8.3

EEC DIR 2005/85 ART 9.2

EEC DIR 2005/85 ART 10.1

RSC O.84

EEC DIR 2005/85 ANNEX I

REFUGEE ACT 1996 S12

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

EEC DIR 2005/85 CHAP V

IMMIGRATION LAW

Judicial review

Leave - Transposition of directive - Minimum standards on procedures in Member States for granting and withdrawing refugee status - Priority to applications made by nationals of Nigeria - Effective remedy - Whether threshold of substantial grounds met - Procedures envisaged by Directive - Whether judicial appropriate vehicle for trial of issues - Whether court should intervene in asylum process before decision - Procedures for determination of asylum applications - Minimum procedural standards laid down by Directive - Whether good and sufficient reason for extending time - Question of sufficient general importance - A v Minister for Justice [2010] IEHC 150, (Unrep, HC, Cooke J, 14/1/2010); Commission v Germany [1985] ECR 1661 and Cairde Chill an Disirt Teo v An Bord Pleanála [2009] IEHC 76, (Unrep, HC , Cooke J, 6/2/2009) considered - GK v Minister for Justice [2002] 1 ILRM 401 applied - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Refugee Act 1996 (No 17), s 12(1) - Council Directive 2005/85/EC, arts 8, 9, 10, 15, 23 and 43 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986 (SI 15/1986) O 84 - Leave granted (2008/1261JR & 2009/56JR - Cooke J - 19/1/2010) [2010] IEHC 172

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

Mr. Justice Cooke
1

In these cases two legal issues have been raised of potential importance and legal substance and the applications for leave have been listed for hearing as test cases because these issues are said to have been raised in a number of other cases as well. The two issues can be stated in the form of questions as follows:

1

Is the direction given by the Minister under s. 12(1) of the Refugee Act1996 to both the Refugee Applications Commissioner and the Refugee Appeals Tribunal that priority be given to the examination and determination of a category of applications for asylum by reference to a single country of origin namely, Nigeria, lawful having regard to the provisions of the "Procedures Directive" that is, Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status?

2

The second issue arises out of the need to reconcile the asylum process as established by the 1996 Act comprising the section 11 interview; the section 13 report and recommendation by the Commissioner, the Tribunal appeal decision, together with the decision on the application by the Minister under s. 17, with the procedures apparently envisaged by that Directive. Is the "effective remedy before a court or tribunal" against the determination of an asylum application at first instance, as required by Article 39, to be regarded under the existing arrangements of the 1996 Act as provided by the appeal from the s. 13 report to the Tribunal or by the availability of judicial review to the High Court?

2

Because of the ruling which the Court will make below it is neither necessary nor appropriate to go in detail into the problems of interpretation which those questions raise. The immediate issue for the Court is whether these cases are appropriate vehicles for the trial of those issues given the restraints which are placed upon the grant of leave by s. 5 of the Illegal Immigrants (Trafficking) Act2000.

3

In each case an order ofcertiorari is sought to quash the s. 13 report of the Commissioner in circumstances where each applicant had availed of the right to appeal to the Tribunal before the judicial review procedure was commenced. In the D. case, the appeal is still pending. In the A. case not only has the appeal been availed of but it has been concluded by an appeal decision of 25th November, 2008. In that case the lapse of time from the notification of the s. 13 report until the commencement of the judicial review proceeding is in excess of four months. In the D. case the lapse of time from the s. 13 report which would require to be covered by an extension of time is approximately nine weeks.

4

TheD. case presents the additional difficulty that the Tribunal appeal has been initiated but postponed and there is now a substantial case law of the Supreme Court and of the High Court to the effect that the latter will not intervene by way of judicial review in advance of the completion of the asylum process by the Tribunal decision except in rare and exceptional cases. In a judgment delivered immediately before the commencement of the hearing in these two cases, this Court endeavoured to summarise that case law by saying that the Court will only intervene "where it is necessary to do so in order to rectify a material illegality in the report which is incapable of, or unsuitable for, rectification by the appeal; which will have continuing adverse consequences for the applicant independently of the appeal; or is such that if sought to be cured by the appeal, it will have the effect that the issue, or that some wrongly excluded evidence involved, will not be reheard but will be examined only for the first time upon the appeal". (Adeyemo v. MJELR & Anor., 14th January, 2010)

5

Accordingly, in theD. case the additional issue arises as to whether the Court should decline to exercise its jurisdiction to intervene in the asylum process before the Tribunal appeal has given rise to a decision.

In order to explain the approach the Court has decided to adopt in these cases it is necessary to outline briefly the context in which the two above legal issues arise.

6

Viewed purely as a piece of national legislation, the Refugee Act1996 (as amended) presents no great difficulty for understanding the significance or effect of the procedures put in place for the reception, examination and determination of applications by asylum seekers or of the functions of the agencies involved. The asylum application is made to the Refugee Applications Commissioner who interviews the applicant, carries out such investigation and inquiry as is needed, compiles a report and makes a recommendation to the Minister as to whether the declaration of refugee status should be made or refused. If the recommendation made is in the affirmative, the Minister is obliged to grant the declaration under s. 17 (1) of the Act. Where the recommendation is negative, the applicant is entitled to appeal to the R.A.T. Subject to certain exclusions, the appeal will involve an oral hearing before a member of the Tribunal leading to a decision which will either affirm or reject the Commissioner's recommendation. Again, if the appeal is successful and the recommendation is positive, the Minister must grant the declaration under s. 17 (1). If the recommendation is negative, however, the Minister "may" still grant the declaration thus indicating that the Minister retains some degree of...

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