JNE v Minister for Justice and Equality

CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date14 November 2016
Neutral Citation[2016] IEHC 651
Date14 November 2016
Docket Number[2016 No. 758 J.R.]

[2016] IEHC 651



Humphreys J.

[2016 No. 758 J.R.]




Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Refusal of asylum claim by the Refugee Applications Commissioner – Judicial review – Consideration of all aspects of claim

Facts: Following the refusal of the claim of asylum of the applicant by the second named respondent, the applicant had filed the present application for seeking judicial review of the decision of the second named respondent. The applicant contended that even after rejection of her claim on the ground of adverse credibility findings; the second named respondent was bound to consider other aspects of the claim.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that where the credibility of the applicant was rejected, the decision-maker was not even under a duty to decide the core claim of the applicant. The Court held that there might be exceptional cases where there was an assessment of risk of persecution despite the lack of general credibility; however, such instances were rare and not applicable in the present case. The Court held that there was no illegality present in the decision of the second named respondent because the applicant still had the right of an effective remedy by way of an appeal before the Refugee Appeals Tribunal (RAT). The Court opined that in order to challenge the findings of the second named respondent pertaining to the assessment of persecution of the applicant, the appropriate remedy was to file an appeal before RAT. The Court held that credibility finding became reversed on appeal and RAT was under a duty to consider other aspects of the claim on a de novo basis, which could not be done on judicial review.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

The applicant came to Ireland from Nigeria in September, 2015 and on arrival was refused entry at Dublin Airport. She was conveyed to the Dóchas Centre where she applied for asylum. Following interviews with the commissioner her application was refused in a decision sent to the applicant on 23rd August, 2016. Unusually, she seeks to challenge the commissioner's decision rather than appeal to the Refugee Appeals Tribunal.


The present application for leave to seek judicial review of the commissioner's decision was filed on 5th October, 2016, out of time. There is an affidavit from her solicitor seeking to explain the delay although it is somewhat thin on detail. I will assume for present purposes (without so deciding) that I would be prepared to extend time for the making of the application.


The substantial grounds test applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and I have had regard to the law in relation to that test including McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 as approved in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 395.


Mr. Conor Power S.C. (with Mr. Paul O'Shea B.L.) in a very able submission for the applicant seeks leave to advance four grounds to challenge the decision, which I deal with as follows.

Are there substantial grounds for contending that the commissioner must consider all aspects of a claim, even if credibility or a well-founded fear is absent?

Mr. Power submits that the decision is defective because the commissioner considered only the applicant's nationality, her credibility and the existence of an objective fear, and did not go on to consider other issues such as, for example, internal relocation.


I have already comprehensibly considered and rejected the motion that a decision maker is obliged to give ‘surplus’ grounds for a decision, if one determinative ground is found to exist: see R.A. v. Refugee Appeals Tribunal No. 1 [2015] IEHC 686 (Unreported, High Court, 4th November, 2015). While R.A. is under appeal, that aspect of R.A. was subsequently quoted with apparent approval by Stewart J. in E.K.K. v. Minister for Justice and Equality [2016] IEHC 38 (Unreported, High Court, 29th January, 2016) at para. 52.


In I.E. v. MHE [2016] IEHC 85 (Unreported, High Court, 15th February, 2016) I rejected the notion that there is any duty to decide the so-called ‘core claim’ (i.e., did the events alleged happen) where an applicant's credibility is rejected.


In that case I discussed E.P.A. v. Refugee Appeals Tribunal [2013] IEHC 85 (Unreported, High Court, Mac Eochaidh J., 27th February, 2013) (para. 9), which was significantly qualified in P.D. v. Minister for Justice, Equality and Law Reform [2015] IEHC 111 (unreported, High Court, 20th February, 2015), in which Mac Eochaidh J. emphasised that it was too simplistic to say that the tribunal must always consider the core claim of an applicant.


In terms of the commissioner specifically, in M.N. v RAT [2015] IEHC 831 (Unreported, High Court, 21st December, 2015), I also previously rejected the notion that a right to an effective remedy means that the tribunal cannot make new findings on appeal.


In M.A.R.A. v. Minister for Justice and Equality [2014] IESC 71 (Unreported, Supreme Court, 12th December, 2014) Charleton J. said at para. 15 that an adverse finding of the commissioner challenged in a notice of appeal is displaced by the tribunal decision unless specifically affirmed. That approach does not rule out the tribunal making new findings in such an appeal.


The right to an effective remedy, whether under EU law generally, art. 39 of the procedures directive in particular, the EU Charter or the ECHR, is not, as I pointed out in M.N., an endless hall of mirrors where any remedy, in turn, gives rise to a right to an effective remedy against that prior remedy.


To take an example from a different field of law, I noted in M.N. that Protocol No. 7 to the ECHR provides in Article 2 for a right of appeal in criminal matters. However, Article 2(1) goes on to state that this right does not apply where a person is ‘tried in the first instance in the highest Tribunal or was convicted following an appeal against acquittal’. Applying this reasoning by analogy to the right to an effective remedy in respect of an asylum decision, it is clear that a tribunal which itself provides an effective remedy against a lower body may nonetheless significantly alter the decision made, without that in turn giving rise to a further right to an effective remedy against the decision of the higher tribunal.


Subject to complying with any other legal requirement, the tribunal is perfectly...

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1 cases
  • JNE v Minister for Justice and Equality
    • Ireland
    • High Court
    • 20 d1 Fevereiro d1 2017
    ...of Mr. Justice Richard Humphreys delivered on the 20th day of February, 2017 1 In J.N.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 651 (Unreported, High Court, 14th November, 2016) I refused the applicant leave to apply for judicial review. Mr. Conor Power S.C. (with Mr. Paul......

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