I.X v The Chief International Protection Officer
| Jurisdiction | Ireland |
| Judge | O'Donnell J. |
| Judgment Date | 21 February 2020 |
| Neutral Citation | [2020] IESC 44 |
| Date | 21 February 2020 |
| Court | Supreme Court |
| Docket Number | Appeal No.: 61/2019 Appeal No.: 62/2019 Appeal No.: 57/2019 Appeal No.: 58/2019,[S.C. Nos. 61, 60, 62, 57 and 58 of 2019] |
[2020] IESC 44
O'Donnell J.
MacMenamin J.
Dunne J.
Charleton J.
Irvine J.
Appeal No.: 61/2019
Appeal No.: 60/2019
Appeal No.: 62/2019
Appeal No.: 57/2019
Appeal No.: 58/2019
THE SUPREME COURT
Order of certiorari – Refugee application – Permission to remain in the State – Appellant 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 appellant permission to remain in the State
Facts: These cases had been heard together and concerned the practice of utilising the services of a panel of independent contractors, in this case self-employed barristers, to assist in the processing of applications for refugee status under the Refugee Act 1996, and refugee status and subsidiary protection under the procedure adopted under the International Protection Act 2015. The dispute was a narrow one. It was accepted, on the part of the appellants, that it was permitted to use panel members for some purposes in determining applications under both statutory regimes, but it was contended that the practice adopted in fact exceeded the lawful authority in each case.
Held by the Supreme Court (O'Donnell J) that, regarding Appeal No. 61 of 2019, the evidence adduced on behalf of the respondents, the Chief International Protection Officer and the Minister for Justice and Equality, showed that the case worker, and therefore the Refugee Applications Commissioner, does conduct an investigation which is moreover an investigation for the purposes of s. 11 of the Refugee Act 1996. O'Donnell J therefore dismissed the appellant’s appeal against the decision of the High Court refusing her application for judicial review. Regarding Appeal Nos. 60 and 62 of 2019, while there were some small differences of fact between the manner in which the draft reports were prepared, altered, and adopted in each of the three cases, O’Donnell J held that it was apparent from the manner in which he decided Appeal No. 61 of 2019 that the decision did not depend upon any such distinctions. In the circumstances, he held that there was no distinction between their cases as a matter of law. He therefore, also dismissed the appeals in those cases.
O'Donnell J held that, regarding Appeal No. 57 of 2019, he did not consider that it was necessary to resolve the question of the interpretation capable of being given to the contract for services between the Minister and the panel member. In the circumstances, he therefore dismissed the appeal. Regarding Appeal No. 58 of 2019, he did not think that it could be said that the mere fact that there was a division of function could be said to render the assessment per se unlawful. In that regard, he noted that no claim was made that the Act was repugnant to the Constitution or inconsistent with the European Convention of Human Rights or the Charter of Fundamental Freedoms or any provision of EU law. In the circumstances, he also dismissed that appeal.
Appeals dismissed.
These cases have been heard together and concern the practice of utilising the services of a panel of independent contractors, in this case self-employed barristers, to assist in the processing of applications for refugee status under the Refugee Act 1996, and refugee status and subsidiary protection under the procedure adopted under the International Protection Act 2015. I will, where possible, refer to the person concerned as “the panel member”.
The dispute is a narrow one. It is accepted, on the part of the appellants, that it is permitted to use panel members for some purposes in determining applications under both statutory regimes, but it is contended that the practice adopted in fact exceeds the lawful authority in each case. It is apparent therefore that, while the cases have considerable similarities, it will be necessary to consider, in some detail, both the facts in each case and the different legal regimes applicable.
The X. cases (Appeal Nos.: 61, 60, and 62 of 2019, respectively) concern a mother and two children of Albanian origin who applied for refugee status on the 29th of December, 2015. The first-named appellant, I.X. (“the mother”), attended for an interview on the 10th of June, 2016, and was interviewed by Beatrice Vance, described as an “authorised officer” with the Office of the Refugee Appeals Commissioner (“ORAC”) who, it is common case, was a panel member at this time. By a letter of the 16th of August, 2016, I.X. was informed that the Refugee Appeals Commissioner was recommending refusal of the application for asylum status.
The letter of the 16th of August, 2016, is central to these proceedings. It enclosed two documents, the first of which was a draft report signed by Ms. Vance over the heading:- “Investigator”, and convening a “Summary of Draft findings” (Emphasis added). The second document was in very similar terms to the first, but was signed by a Ms. Niamh O'Neill, described as:- “Investigator”, and signed for and on behalf of the Refugee Applications Commissioner by Dara Coyne. It is accepted that Ms. O'Neill was, at the relevant time, an Executive Officer in the Civil Service and I will refer to her after as the “E.O.” Mr Coyne was a Higher Executive Officer (“H.E.O.”) in ORAC. A formal recommendation was contained at para. 8 in the following terms:-
“I have considered the application for Refugee Status, the documentation available to the Commissioner on file, and the analysis and findings in this case, and I am of the view that the applicant, [redacted] [I.X.], has not established a well founded fear of persecution if returned to Albania. Accordingly, I recommend that the applicant is not eligible for Refugee Status.”
It is relevant to record that the application for leave to seek judicial review was initially refused in the High Court (Humphreys J.), but granted on appeal to this court by order of the 16th of May, 2018.
The grounds upon which leave was sought and granted were essentially that the statutory function of the Commissioner was being performed, in effect and in reality, not by a member of the staff of the Commissioner, but by the panel member. The same set of facts was alleged to give rise to two grounds, either of which, it was suggested, was sufficient to establish invalidity. There was either non-performance of a statutory function by the person authorised by statute to perform it, or the performance of a statutory function by a person not authorised by statute to do so. The legal arguments, which are the obverse of each other, are dependent on the same conclusion of fact: that it was, in reality, the panel member who conducted the investigation and, therefore, made the recommendation.
The grounds on which leave was sought and granted were simple:
(i) No lawful investigation of the appellant's application for refugee status was carried out by the respondent within the meaning of the ss. 11 and 13 of the Refugee Act 1996 (“Act of 1996”).
(ii) An interview with the appellant was conducted by a person purporting to be an authorised officer under the Act. The authorised officer thereafter conducted and finalised a purported investigation under s. 13 of the Act of 1996 without lawful authority.
(iii) A recommendation of the respondent was not in compliance with the requirements of s. 13 of the Act of 1996 by reason of the failure of the respondent to meaningfully carry out an investigation under that section in circumstances in which the authorised officer was not entitled to carry out an investigation of the appellant's claim.
(iv) No substantive investigation of the appellant's claim for refugee status, within the meaning of the Act of 1996, has been conducted by the respondents and the lawfulness of the consequent recommendation is thereby vitiated.
In order to understand the precise point being made, it may be useful to digress at this point and consider the relevant statutory provisions, which in this case can be reduced to the provisions of ss. 11 and 13 of the Act of 1996. S. 11 provided as follows:-
“11.(1) Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to the provisions of section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.
(2) In a case to which subsection (1) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the interview...
To continue reading
Request your trial
-
Z.K v The Minister for Justice and Others
...claim for asylum. 43 . The trial judge also had regard to the Supreme Court's decision in IX v. Chief International Protection Office [2020] IESC 44 (‘ IX’) in coming to her decision. She observed that, as there was nothing ‘ demonstrably false’ in the applicant's application, the Minister ......
-
F. M. v The Minister for Justice and Equality, Ireland and The Attorney General
...consider them to be of any relevance in these cases. However, I note, in passing, that in I.X. v. Chief International Protection Officer [2020] IESC 44, O'Donnell J. opined that the 2015 Act “ effected a radical, and welcome restructuring the process for decision-making on applications for ......
-
MK v Minister for Justice and Equality
...as an IPO, of the Respondent's s. 49 decision making power was commented upon, without negativity, by the Supreme Court in IX v. IPAT [2020] IESC 44 as follows:- “Leave to remain is a matter of domestic law and a matter for the discretion of the Executive, exercised in this case by the Mini......
-
ASA v The Minister for Justice
...as an IPO, of the Respondent's s. 49 decision making power was commented upon, without negativity, by the Supreme Court in IX v. IPAT [2020] IESC 44 as follows:- “Leave to remain is a matter of domestic law and a matter for the discretion of the Executive, exercised in this case by the Mini......