M (I M) v Min for Justice & Refugee Appeals Tribunal (Levey)

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 26 July 2011
• Neutral Citation: [2011] IEHC 309
• Docket Number: [No. 1404 J.R./2007]
• Court: High Court
• Date: 26 July 2011

[2011] IEHC 309

THE HIGH COURT

[No. 1404 J.R./2007]

M (I M) v Min for Justice & Refugee Appeals Tribunal (Levey)

JUDICIAL REVIEW

BETWEEN

I. M. M.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MARGARET LEVEY SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S13

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

M (M) v MIN FOR JUSTICE & ORS (NO 1) UNREP HOGAN 18.5.2011 (EX TEMPORE)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

EEC DIR 2004/83 ART 4(1)

EEC DIR 2004/83 RECITAL 6

EEC DIR 2004/83 RECITAL 7

EEC DIR 2004/83 RECITAL 24

EEC DIR 2004/83 RECITAL 25

EEC DIR 2004/83 ART 1

EEC DIR 2004/83 ART 4(2)

EEC DIR 2005/85 ART 12

EEC DIR 2005/85 ART 14

EEC DIR 2005/85 ART 39

EEC DIR 2005/85 ART 14(2)

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S16

I (V) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION LAW

Asylum

Country of origin information - Credibility - Fear of persecution - Requirement to remarry - Lack of state protection - Arguable case - Application to amend statement of grounds - Exceptional delay in bringing application - Additional reliefs - Duty to furnish draft decision - Whether Council Directive properly transposed - Whether directive provided for cooperative procedure - Whether country of origin information misconstrued - Whether credibility assessment based on rational analysis - Whether arguable case - M(M) v Minister for Justice, Equality and Law Reform (Unrep, HC, Hogan J, 18/5/2011); I(V) Minister for Justice [2005] IEHC 150, (Unrep, HC, Clarke J, 10/5/2005); Muresan v Minister for Justice [2004] IEHC 348, [2004] 2 ILRM 364; Ní Eilí v Environmental Protection Agency [1997] 2 ILRM 458 and R(I) v Refugee Appeals Tribunal [2009] IEHC 359, (Unrep, HC, Cooke J, 24/7/2009) considered - Ahmed v Minister for Justice, Equality and Law Reform (Unrep, HC, Birmingham J, 24/3/2011) followed - Refugee Act 1996 (No 17), ss 11 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2) - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Council Directive 2004/83/EC - Council Directive 2005/85/EC - Application to amend refused; leave granted and time extended (2007/1404JR - Cooke J - 26/7/2011) [2011] IEHC 309

M(IM) v Minister for Justice, Equality and Law Reform

Mr. Justice Cooke

1 This is an application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal dated the 26^th September, 2007, which affirmed the negative recommendation on the applicant's application for asylum given in the report of the Refugee Applications Commissioner dated the 9^th March, 2006, under s. 13 of the Refugee Act 1996 (as amended).

2 The applicant is a national of the Cameroon, who is now 40 years of age and a member of the Bamileke tribe. She claims that she had married in 1993 but her husband was killed in a motor car accident in 2004. She claims to have two children which she was obliged to leave behind her in her country of origin when she fled. The essential basis of her claim for asylum was domestic in character, in that it arose out of the consequences for her of the death of her husband. She gave an account according to which her traditional marriage in 1993 had involved a marriage contract under which a "bride price" had been paid to the family of her husband, such that, as a result of his death, his family regarded her as the property of the family and, in accordance with traditional practice, they were entitled to insist that she marry a brother in law. She claimed that following her husband's death, his family effectively expropriated and took over his businesses and property and insisted that she give up any money he had left her. (The husband had been a businessman with a bakery and a printing works). She claimed that no state protection was available to her against these threats and actions because she had been detained by local police for seven days with a view, she believed, to intimidating her into complying with the demands of her late husband's family.

3 As originally commenced, the judicial review sought in this case was directed against the manner in which the Tribunal member had assessed the applicant's account in the light of country of origin information as to the traditional and customary laws of Cameroon in relation to forced marriages, the payment of a bride price and the consequential entitlement of the family of a deceased husband to require the widow to remarry in the same family. In effect, the contested decision of the Tribunal discounted the credibility of the applicant's claim because of a discrepancy, as the Tribunal member saw it, between the description of that practice in the country of origin information and the sequence of events described by the applicant following her husband's death. The Court will return to this aspect of the case later in this judgment.

4 It is necessary, first, however, to deal with an entirely new ground that was introduced at the very outset of the hearing of the case by way of an application to amend the statement of grounds. Although no notice of motion of the application had been brought, the Court was informed that the respondents had been furnished with supplemental legal submissions shortly before the commencement of the hearing in which it was indicated that the Court would be asked to allow the statement of grounds to be amended by the addition of further reliefs and grounds effectively directed at alleged failure of the State to properly transpose Council Directive 2004/83/EC of the 29^th April, 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("The Qualifications Directive") in the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006). Four additional grounds were sought to be included but in substance the issue thus sought to be raised appears to be one inspired by a judgment given by Hogan J. on the 18^th May, 2011, in M.M. v. Minister for Justice, Equality and Law Reform and Others, in which he acceded to a request to refer to the Court of Justice of the European Union under Article 267 TFEU a question as to the correct interpretation of Article 4(1) of the Qualifications Directive.

5 That provision is as follows:-

"Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application."

6 The submission made on behalf of the applicant in support of this request to amend the statement of grounds is that the Qualifications Directive as implemented in the 2006 Regulations does not provide, or adequately provide, for a "cooperative" procedure in the examination of an asylum application. More particularly, it is argued that this obligation to "cooperate" with the asylum seeker necessarily involves a duty to furnish the asylum seeker with a draft of a proposed decision upon the application so as to afford the asylum seeker an opportunity of rebutting any negative propositions upon which the decision maker proposes to rely. It is further submitted that there is clearly an uncertainty as to the correct interpretation of Article 4(1) of the Directive in this regard because of the decision of Hogan J. in M.M. to refer a question in that regard to the Court of Justice and that this Court is, as a result, precluded from deciding the issue, but must also refer the matter by way of reference to the European Court.

7 This Court is satisfied that in the particular circumstances of the present case the application to amend the statement of grounds cannot succeed for a number of reasons. First, the issue of interpretation of Article 4(1) sought to be raised is, in the view of the Court, not well founded and has no prospect of being sustained or of justifying the raising of a reference for preliminary ruling under Article 267 TFEU.

8 The proposition thus advanced is that the paragraph must be construed as imposing upon the decision-makers throughout the asylum process (including therefore decisions of the Tribunal) an obligation to consult the asylum seeker and particularly an obligation to furnish draft decisions for comment and possible rebuttal before the decisions are, as it was put, "signed off".

9 This proposition, in the view of the Court, misconstrues the place and purpose of Article 4(1) in the EU asylum legislation and is inconsistent with the manner in which the common process for the examination of asylum applications within the Union is intended to operate.

10 In this regard, it must be pointed out that this reference to "cooperation" occurs in the Qualifications Directive and not in the Procedures Directive ( Council Directive 2005/85/EC of the 1^st December, 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status). As its recitals make clear, the Qualifications Directive is concerned with harmonising the criteria for the substantive assessment of claims to refugee status under the 1951 Refugee Convention as well as introducing the form of complementary international protection known as "subsidiary protection". (See for example recitals 6, 7, 24 and 25. and Article 1.) So far as procedures for grant and withdrawal of refugee status are concerned, the minimum standards are laid...