M.B. v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mac Eochaidh |
| Judgment Date | 06 March 2015 |
| Neutral Citation | [2015] IEHC 146 |
| Court | High Court |
| Docket Number | [2014 No. 211 JR] |
| Date | 06 March 2015 |
[2015] IEHC 146
THE HIGH COURT
BETWEEN
AND
Immigration and Asylum – Judicial Review – European Union (Subsidiary Protection) Regulations 2013 – s. 3 of the European Communities Act 1972 – Art. 6 and 13 o the European Convention on Human Rights – Powers of the Refugee Applications Commissioner
Facts: This case involved an application for judicial review of the European Union (Subsidiary Protection) Regulations 2013 ("the 2013 Regulations"). The applicant sought declarations that the 2013 Regulations were ultra vires s. 3 of the European Communities Act 1972 and were repugnant to the Irish Constitution and Articles 6 and 13 o the European Convention on Human Rights (ECHR). The applicant also sought an order of certiorari in respect of a report and recommendation of Mr Donal Horgan and furthermore, a declaration that the Refugee Applications Commissioner ("RAC") is not permitted to delegate his function of making a recommendation for subsidiary protection. The applicant was a Bangladeshi citizen who received a negative recommendation from the Office of the Refugee Applications Commissioner ("ORAC"). The applicant unsuccessfully appealed to the Refugee Appeals Tribunal. The applicant duly made an application for subsidiary protection and leave to remain. The ORAC issued a negative recommendation in relation to the application for subsidiary protection. The recommendation was signed by Mr Horgan on behalf of the Commissioner. The applicant complained that because the RAC made a negative recommendation on his asylum application, his involvement as decision maker in the application for subsidiary protection was bias. This meant the applicant was being denied an independent and impartial tribunal.
Held by Mac Eochaidh J: There is no rule in European law that requires separate people to assess applications for asylum and subsidiary protection. The negative decision on asylum is integral to the assessment of subsidiary protection. The court determined that EU law permitted a single decision maker to decide both matters and rejected the contention that such duality conflicted with EU policy. The court also rejected the argument that the 2013 Regulations infringed the Irish Constitution and common law rule against bias. The court found that the dual decision making function of the Commissioner did not offend EU law, nor Irish constitutional law and the ECHR did not assist the applicant. The Commissioner was entitled to delegate the function of making the Regulation 6(1)(d) recommendation. No rule derived from the Qualification Directive or the Procedures Directive or a provision of EU law required the Commissioner to personally decide each and every application. The Commissioner has the power of delegation with respect to subsidiary protection applications. For these reasons the court dismissed the application for judicial review.
JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 6th day of March 2015
1. This is a telescoped application for judicial review challenging certain aspects of the European Union (Subsidiary Protection) Regulations 2013 ('the 2013 Regulations'). In particular, the applicant seeks declarations that the 2013 Regulations are ultra vires s. 3 of the European Communities Act 1972 and are thereby repugnant to Art. 15.2.1 of the Constitution and / or that they are repugnant to Art. 40.3 of the Constitution and Articles 6 and 13 of the European Convention on Human Rights. The applicant also seeks an order of certiorari in respect of the report and recommendation of Mr. Donal Horgan and further, a declaration that the Refugee Applications Commissioner is not permitted to delegate the function of making a recommendation in respect of an application for subsidiary protection pursuant to the 2013 Regulations. These latter reliefs were sought by way of amended pleadings by the applicant during the course of proceedings following a query raised by the court.
2. The applicant is a Bangladeshi citizen who was bom in 1983 and came to Ireland on the 22 nd January 2009. He made an application for asylum on 29 th January 2009 and received a negative recommendation from the Office of the Refugee Applications Commissioner ("ORAC") on 15 th May 2009. Negative credibility findings were made by ORAC. The applicant appealed this negative decision to the Refugee Appeals Tribunal but was unsuccessful in his appeal. The applicant received a 'three options' letter from the Minister on 30 th March 2010 and the applicant duly made an application for subsidiary protection and leave to remain on 20 th April 2010.
3. The applicant avers that during his time in the State he has met and fallen in love with a British-born national with dual citizenship of the United Kingdom and Ireland. The applicant states that he married her on the 30 th September 2013 and as his wife is an EU citizen exercising her EU Treaty rights he was given permission to be in the State while his formal application for residency based on his wife's status is processed.
4. On 20 th November 2013, the Minister wrote to the applicant informing him of a new procedure for subsidiary protection applications under the 2013 Regulations. The applicant's solicitors wrote to the Refugee Applications Commissioner and the Irish Naturalisation and Immigration Service ('INIS') highlighting concerns about the 2013 Regulations. Nonetheless, the applicant received a letter inviting him to interview at ORAC on the 11 th April 2014. The applicant's solicitors replied to that letter outlining his objection to the Refugee Applications Commissioner hearing the application for subsidiary protection and gave notice of their instructions to issue judicial review proceedings. Following further correspondence in which the applicant sought the postponement of the oral hearing, he attended the oral hearing at ORAC stating that it was "under protest and without prejudice to the High Court proceedings". A report was duly compiled by Ms. Aideen Pendred dated 30 th May 2014 following her interview of the applicant. A negative recommendation in respect of the application for subsidiary protection then issued from ORAC signed by Mr. DonalHorgan 'For the Refugee Applications Commissioner' and dated 27 th June 2014.
5. The applicant complains that because the Refugee Applications Commissioner has made a negative first instance recommendation on his asylum application, his involvement as the decision maker in the application for subsidiary protection is in breach of the principle of nemo iudex in causa sua. I understood this complaint to be that the determination of his application for subsidiary protection infringed the rule against bias.
6. Counsel notes that as the 2013 Regulations were made under s. 3 of the European Communities Act 1972 the applicant's challenge relies on the dicta of Finlay C.J. in Meagher v. Minister for Agriculture and Food [1994] 1 I.R. 329 who said:
"That principle is that it must be implied that the making of regulations by the Minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to the section, contravene any provisions of the Constitution. If therefore in such an instance challenge were to be made to the validity of a ministerial regulation having regard to the absence of necessity for it to be carried out by regulation instead of legislation and having regard to the nature of the content of such regulation it would have to be a challenge made on the basis that the regulation was invalid as ultra vires being an unconstitutional exercise by the Minister of the power constitutionally conferred upon him by the section."
7. The applicant claims that an analysis of fair procedures and constitutional justice encompasses an examination, not only of Art. 40.3.1 of the Constitution but also Articles 41 and 47 of the EU Charter of Fundamental Rights and Articles 6 and 13 of the European Convention on Human Rights. In particular, the applicant in his submissions on constitutional justice contends that:
· The Commissioner has already decided that the applicant is not credible in the context of his failed application for asylum;
· The Commissioner advocated in favour of his own negative decision on the applicant's asylum application before the Refugee Appeals Tribunal.
8. In submitting that the Commissioner is persona designata in the processing of applications, the applicant points to Regulations 5 and 6 of the 2013 Regulations which state:
2 "5. (1) The Commissioner, on receipt of an application, shall-
(a) without delay, give or cause to be given to the applicant a statement referred to in paragraph (2), and
(b) investigate, in accordance with this Regulation, the application for the purpose of ascertaining whether the applicant is a person in respect of whom a subsidiary protection declaration should be given and making a recommendation under Regulation 6 in relation to the application."
...
6. (1) Where an investigation is carried out under Regulation 5, the Commissioner shall, as soon as practicable, prepare a written report in which he or she shall-
(a) refer to the matters relevant to the application raised by the applicant in the interview under Regulation 5,
(b) refer to such other matters as he or she considers appropriate,
(c) set out his or her findings in relation to the application, and
(d) set out his or her...
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