I.X. v The International Protection Office ; X.X. v The International Protection Office ; F.X. v The International Protection Office ; N.Y. v Chief International Protection Officer ; J.Z. v Chief International Protection Officer

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 January 2019
• Neutral Citation: [2019] IEHC 21
• Date: 11 January 2019
• Court: High Court
• Docket Number: 2016 No. 706 JR 2016 No. 710 JR 2018 No. 454 JR 2018 No. 577 JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

Between

I.X.

Applicant

– and –

THE INTERNATIONAL PROTECTION OFFICE

and

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

Between

X.X. (SUING BY HER MOTHER AND NEXT FRIEND I.X.)

Applicant

– and –

THE INTERNATIONAL PROTECTION OFFICE

and

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

Between

F.X. (SUING BY HER MOTHER AND NEXT FRIEND I.X.)

Applicant

– and –

THE INTERNATIONAL PROTECTION OFFICE

and

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

N.Y.

Applicant

– and –

CHIEF INTERNATIONAL PROTECTION OFFICER

and

MINISTER FOR JUSTICE AND EQUALITY

Respondents

– and –

INTERNATIONAL PROTECTION APPEALS TRIBUNAL

Notice Party

Between

J.Z.

Applicant

– and –

CHIEF INTERNATIONAL PROTECTION OFFICER

and

MINISTER FOR JUSTICE AND EQUALITY

Respondents

[2019] IEHC 21

Barrett J.

2016 No. 706 JR

2016 No. 709 JR

2016 No. 710 JR

2018 No. 454 JR

2018 No. 577 JR

THE HIGH COURT

Order of certiorari – Refugee application – Permission to remain in the State – Applicant seeking an order of certiorari quashing the recommendation of the respondent that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration – Whether the respondent should not have refused the applicant permission to remain in the State

Facts: The principal reliefs sought by the various applicants were: (i) in the case of Ms I.X., an order of certiorari quashing the recommendation of the first respondent, the International Protection Office, that Ms I.X. should not be declared to be a refugee and which was notified to Ms I.X. on 16th August, 2016; (ii) in the case of Ms F.X., an order of certiorari quashing the recommendation of the first respondent, the International Protection Office, that Ms F.X. should not be declared to be a refugee and which was notified to Ms F.X. on 16th August, 2016; (iii) in the case of Ms X.X., an order of certiorari quashing the recommendation of the first respondent, the International Protection Office, that Ms X.X. should not be declared to be a refugee and which was notified to Ms X.X. on 16th August, 2016; (iv) in the case of Mr N.Y., (a) an order of certiorari quashing the recommendation of the first respondent, the Chief International Protection Officer, made pursuant to s. 39(3)(c) of the International Protection Act 2015 in conjunction with the transitional provisions in s. 70(2) that Mr N.Y. should be given neither a refugee declaration nor a subsidiary protection declaration, which was notified to Mr N.Y. by letter dated 14th May 2018, and (b) an order of certiorari quashing the decision of the second respondent, the Minister for Justice and Equality, made pursuant to s. 49(4)(b) of the 2015 Act to refuse Mr N.Y. permission to remain in the State, which was notified to Mr N.Y. by letter dated 14th May, 2018; and (v) in the case of Mr J.Z., an order of certiorari quashing the recommendation of the first respondent, the Chief International Protection Officer, made pursuant to s. 39(3) of the 2015 Act that Mr J.Z. should be given neither a refugee application nor a subsidiary protection declaration, which was notified to Mr J.Z. by letter dated 19th June 2018.

Held by the High Court (Barrett J) that it would (a) grant an order of certiorari quashing the decision of the second respondent made pursuant to s. 49(4)(b) of the 2015 Act to refuse Mr N.Y. permission to remain in the State, which decision was notified to Mr N.Y. by letter dated 14th May, 2018, and (b) remit the ‘permission to remain’ aspect of Mr N.Y.’s case for fresh consideration.

Barrett J held that all other reliefs sought by the various applicants would be refused.

Reliefs refused in part.

JUDGMENT of Mr Justice Max Barrett delivered on 14th January, 2018.

A. THE X APPLICATIONS

3 1. Legal Background. The X applications are primarily concerned with ss. 11 and 13 of the Refugee Act, 1996, as amended. Section 11(1) provides, inter alia: ‘Where an application is received by the [Refugee Applications] Commissioner…and…is not withdrawn or deemed…withdrawn…it shall be the function of the Commissioner to investigate the application…’. Section 13(1) provides, inter alia: ‘Where the Commissioner carries out an investigation under section 11 he or she shall…prepare a report in writing of the results of the investigation and such report shall [inter alia]… set out the findings of the Commissioner together with his or her recommendation whether the applicant…should or…should not be declared…a refugee.’ The First Schedule, para.9 of the 1996 Act provides that ‘ The Commissioner may delegate to any members of the staff of the Commissioner any of his or her functions under this Act save those conferred by section 7.’ (Section 7 is not relevant to the applications at hand).

2 The Panel. The respondents acknowledge that assistance was given to the Commissioner by outside contractors (a panel of barristers/solicitors) for the purposes of investigation. They maintain, however, that what panel members did does not amount to investigation; it was merely assistance to the staff of the Commissioner in their conduct of an investigation. The applicants maintain that the investigation was in reality conducted by a panel member.

3 Ms I.X.'s Application. The personnel hierarchy in the process under consideration, in ascending order of importance is: (1) panel member (an external contractor), (2) caseworker (a civil servant), and a Higher Executive Officer (also a civil servant). In the I.X. case, Ms N.O'N., a caseworker, has averred, inter alia, as follows:

‘4. At the time the Applicant made an application for asylum in the State in December 2015, all such applications were first considered by the then Refugee Applications Commissioner (the “Commissioner”) who was responsible therefor under the Refugee Act 1996 (as amended) (“the 1996 Act”)…. In respect of the determination of any refugee application by the Commissioner there were usually 3 people involved as a team, a Caseworker, a HEO who has overall control/responsibility and who makes the recommendation under s. 13 of the Act and a Panel Member who works with me. In respect of this application the ORAC team comprised the HEO…a Panel Member [Ms B.V.]… and myself. I know that [Ms B.V.]… is designated as an Authorised Officer under the 1996 Act.

5. I was the Caseworker assigned to the investigation of the Applicant's application for refugee status. I was responsible for the carrying out of its investigation and making findings thereon. As the designated Caseworker, I had control over the investigation and I was at all times conscious of that fact but I received considerable assistance from the Panel Member when carrying it out. I have worked many times with [Ms B.V.]… who is very competent and experienced and we collaborate very well together.

6. I have undergone substantial training with ORAC in relation to the processing and determining of applications under the 1996 Act and in particular the respective roles of the personnel involved. In on the job interactions with HEOs and other EOs, particular emphasis was laid on the principle that, under the 1996 Act in respect of refugee status determinations, it is the ORAC Caseworker who has responsibility for its investigation and makes the ultimate findings thereon not a Panel Member, who is assisting in any such applications. In addition to this training, as a Caseworker I am familiar with the ORAC Guidance Notes dealing with the investigation of an application for refugee status by caseworkers including on credibility…001/2014; the s.13 report template…003/2015 and the process for determining refugee applications when Panel Members were introduced to the system…005/2015 but do not recall reading the Guidance Note on the Act of 1996 for HEOs…006/2015 which does not apply to me as an EO. [In fact it does apply in certain circumstances to “EOs”].

7. As is set out in paras 2-4 of the Affidavit of the Applicant sworn on the 7th September 2016, the Applicant underwent a s.8 interview. The Applicant completed a Questionnaire and attended for her s.11 interview. A Recommendation to the Minister was made by the HEO…that the Applicant should not be declared a refugee by way of a s.13 report dated the 22nd July 2016 (the Applicant was informed of this recommendation by letter dated 16th August 2016), which recommendation is now the subject of an appeal. I say that a s.13 report dated 22nd July 2016, signed by myself and the HEO…was enclosed with the said letter, together with a draft such report dated 29th June 2016, as exhibited in the said Affidavit of the Applicant.

8. Separate applications for asylum (premised upon the same claim) were lodged by the Applicant on behalf of her children [Ms F.X. and Ms X.X.]… which were individually examined but similarly refused by the Commissioner and are also awaiting appeal. In the case of [Ms X.X.]… her s. 11 interview took place on the 11th June 2016 with a draft s.13 Report dated 29th June 2016 and s.13 Report, signed by me, dated 3rd August 2016. In the case of [Ms F.X.]… her s. 11 interview also took place on the 10th June 2016 with a draft s.13 Report dated 29 June 2016 and s. 13 Report, signed by me, dated 3rd August 2016. The same ORAC team processed all 3 applications for asylum. Separate Judicial Review proceedings…on behalf of each have also been filed with the relevant documentation exhibited. The grounds in respect of all 3 cases are identical.

9. The Applicant's application was assigned to the Panel Member [Ms B.V.]… in or around 1 June 2016. I was always aware that Panel Members had been designated as Authorised Officers under the Act of 1996 and were therefore empowered to carry out an interview under s.11(2) of the Act. In that capacity, [Ms B.V.]… conducted the interview of the Applicant which took place on 10 June 2016. Records show that the interviews of each...