M.M. v Chief International Protection Officer

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 14 October 2022
• Neutral Citation: [2022] IECA 226
• Year: 2022
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2021/58

Between/

M.M.

Applicant/Appellant

and

Chief International Protection Officer, The Minister for Justice and The International Protection Appeals Tribunal

Respondents

[2022] IECA 226

Murray J.

Donnelly J.

Ní Raifeartaigh J.

Court of Appeal Record Number: 2021/58

THE COURT OF APPEAL

CIVIL

International protection – Statutory interpretation – International Protection Act 2015 – Appellant seeking international protection – Whether the decision-maker failed to make a finding of fact on an important factual issue

Facts: The appellant, a national of Zimbabwe, arrived into the State on the 16 September 2017 and applied for international protection on the same day. At Part 7 of the application, the appellant stated that she fled Zimbabwe because her husband became physically violent to her and made death threats to her due to her lesbian identity, after she was “involuntarily outed” by members of her community. This came about, she said, after her uncle discovered her relationship with a female partner. She stated that she and her female partner fled Zimbabwe and went to South Africa and said that if she were to return to Zimbabwe, she would be endangered. The appellant unsuccessfully appealed a decision of the first respondent, the Chief International Protection Officer, that the appellant be refused a refugee or subsidiary protection declaration pursuant to s. 39(3) of the International Protection Act 2015, and that she also be refused permission to remain pursuant to s. 49 of the same Act ([2021] IEHC 28). The appellant appealed to the Court of Appeal from the High Court. An issue of statutory interpretation arose as to whether the 2015 Act requires a single international protection officer (IPO) to make both (a) decisions concerning the interviewing of an applicant (i.e. whether to interview and who will interview) and (b) the final recommendation/decision subsequent to the interview (in circumstances where the interview is conducted by a panel member appointed pursuant to s. 76(1) of the Act). In this case, one IPO arranged for the interview to be conducted by a panel member, and a second IPO made the required recommendation. The appellant maintained that the involvement of two separate IPOs in this manner is not permitted by the legislation. Other issues raised in the case were: (1) whether compliance with sub-section (13) of s. 35 must be effected within a particular time-frame; (2) whether the decision on refoulement failed to give proper reasons insofar as it contained an (alleged) ambiguity; and (3) whether the decision-maker failed to make a finding of fact on an important factual issue, namely whether the appellant was lesbian in her sexual orientation.

Held by Ní Raifeartaigh J that, in view of the guidance provided by the CJEU in the A, B and C case, Joined Cases C-148/13, C-149-13, and C-150-13, and in view of the central role of the appellant’s sexual orientation in her application for international protection, she was of the view that the decision-maker erred in failing to pose and answer the questions: (a) Is the applicant of lesbian sexual orientation? (b) If so, is she at risk of persecution or risk to her personal safety if returned to her country of origin? Ní Raifeartaigh J held that these questions fell to be determined on the basis of the specific evidence submitted by the appellant as well as country of origin information; however, they required clear articulation as issues to be determined, and answered, and this did not occur.

Ní Raifeartaigh J, on this point alone, quashed the decision and remitted the matter so that consideration may be given to, and explicit findings made, with regard to questions (a) and (b) identified above. As the appellant had been successful in the appeal, Ní Raifeartaigh J’s provisional view was that the appellant was entitled to the costs of the appeal.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 14th day of October 2022

Introduction

1 . The main issue in this case is one of interpretation of the statutory scheme for the processing of international protection claims by international protection officers (“ IPOs”) pursuant to the International Protection Act 2015 (“ the 2015 Act”). It arises in the context of the appellant's unsuccessful appeal of a decision of the first respondent that the appellant be refused a refugee or subsidiary protection declaration pursuant to s. 39(3) of the 2015 Act, and that she also be refused permission to remain pursuant to s. 49 of the same Act; see [2021] IEHC 28. The issue of statutory interpretation arising is whether the 2015 Act requires a single IPO to make both (a) decisions concerning the interviewing of an applicant (i.e. whether to interview and who will interview); and (b) the final recommendation/decision subsequent to the interview (in circumstances where the interview is conducted by a panel member appointed pursuant to s. 76(1) of the Act). In the present case, one IPO arranged for the interview to be conducted by a panel member, and a second IPO made the required recommendation. The appellant maintains that the involvement of two separate IPOs in this manner is not permitted by the legislation.

2 . Other issues raised in the case are: (1) whether compliance with sub-section (13) of s. 35 must be effected within a particular time-frame; (2) whether the decision on refoulement failed to give proper reasons insofar as it contained an (alleged) ambiguity; and (3) whether the decision-maker failed to make a finding of fact on an important factual issue, namely whether the appellant was lesbian in her sexual orientation.

Background

3 . The appellant is a national of Zimbabwe who was born in 1993. She arrived into the State on the 16 September 2017 and applied for international protection on the same day. The application process required the completion of a questionnaire. In her application, she stated that she is a Christian and a member of the Ndebele tribe. She also stated that she was married twice, first at the age of 9 and again at the age of 13. She said that the two men to whom she was (successively) married were brothers (her second marriage taking place when her first husband died), and were members of ZANU-PF. She has a son who was born in 2013 and who at the time of the application had remained in Zimbabwe. She said she had experienced emotional abuse, domestic servitude and illegal abortion during her two marriages.

4 . At Part 7 of the application, the appellant stated that she fled Zimbabwe because her husband became physically violent to her and made death threats to her due to her lesbian identity, after she was “involuntarily outed” by members of her community. This came about, she said, after her uncle discovered her relationship with a female partner. She stated that she and her female partner fled Zimbabwe and went to South Africa and said that if she were to return to Zimbabwe, she would be endangered.

The procedures employed in respect of the appellant's application

The international protection application

5 . Mr. Keiffer Corrigan, an IPO working in the International Protection Office, appointed Mr. Ciarán McCarthy, a panel member, to conduct a personal interview with the appellant, and arranged for the interview to be conducted on the 31 January 2019.

6 . Mr. Ciaran McCarthy, a panel member appointed pursuant to s. 76(1) of the 2015 Act, carried out the interview on the 31 January 2019 and created a record of it as required by s. 35(12) of the 2015 Act. He later created an addendum to his draft s. 39 report in order to comply with s. 35(12)(b) of the Act; this was done on the 24 April 2019 and identified the information in sections 1 to 8 of the report which were relevant to the international protection application, and to the permission to remain application, respectively.

7 . Ms. Ciara Roche, another IPO working within the International Protection Office, was assigned as the case worker to the file on the 28 February 2019. Obviously, this was on a date after the interview had been conducted with the appellant. Ms. Roche completed a document (the s. 39 report) in which she largely agreed with the views expressed by Mr. McCarthy in his draft s. 39 report and recommendations. She considered the entirety of the applicant's file and the draft report and completed the s.35 report on the 25 April 2019. She made a negative recommendation under s.39(3).

The s. 49 process

8 . On the 30 April 2019, Ms. Ruth Byrne, an IPO who was working in the Permission to Remain Unit within the International Protection Office, was assigned to the appellant's case. She conducted an examination of the file and, by a decision dated the 23 May 2019, refused the appellant's application for permission to remain. Ms. Byrne swore an affidavit dated the 20 August 2020 in which she said that before reaching her decision, she took into account the s. 35(12) report, the s. 39 report, and the country of origin information. Ms. Byrne averred that although it was open to an applicant to submit further information in relation to s.49 to the Minister at any time up to the completion of the s. 39 report, the appellant did not submit any additional information or material after the s. 35 interview.

9 . The appellant was notified by letter dated the 20 June 2019 that the IPO had recommended that she should not be given either a refugee declaration or a subsidiary protection declaration. The letter also gave her notice that the Minister had decided pursuant to s. 39(3)(c) of the Act to refuse her permission to remain in the State. The letter enclosed the s. 39 report and a copy of the signed report of the s. 35 interview. The letter said that a recommendation to this effect would be forwarded to the Minister. It told her of her right to appeal to the International Protection Appeals Tribunal...