M (M) v Min for Justice and Others (No 3)

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date23 January 2013
Neutral Citation[2013] IEHC 9
CourtHigh Court
Docket Number[2011 No. 8 JR]
Date23 January 2013
M (M) v Min for Justice & Ors (No 3)

BETWEEN

M. M.
APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL (No.3)
RESPONDENTS

[2013] IEHC 9

[No. 8 J.R./2011]

THE HIGH COURT

IMMIGRATION LAW

Subsidiary protection

Fair procedures - Credibility - Oral hearing - European Union law - Preliminary ruling of European Court of Justice - Requirement to cooperate with applicant - Whether adverse credibilty findings in asylum decision could be taken into account in subsidiary protection decision - Whether European Court of Justice required oral hearing for subsidiary protection claims - Whether applicant entitled to re-open determinations in asylum process - Whether applicant entitled to separate and independent adjudication of credibility - Barua v Minister for Justice [2012] IEHC 456 (Unrep, Mac Eochaidh J, 9/11/2012); ND v Minister for Justice [2012] IEHC 44, (Unrep, Cooke J, 2/2/2012); France v People's Mojahedin Organisation of Iran (Case C27/09P) (Unrep, ECJ, 21/12/2011); OJ v Minister for Justice [2012] IEHC 71, (Unrep, Cross J, 3/2/2012); Lyons v Financial Services Ombudsman [2011] IEHC 454, (Unrep, Hogan J., 14/12/2011); HM v Minister for Justice [2012] IEHC 176, (Unrep, Cross J, 27/4/2012); MM v Minister for Justice (Case C-277/2011) (Unrep, ECJ, 22/11/2012); MM v. Minister for Justice [2011] IEHC 547, (Unrep, Hogan J, 18/5/2011); MM v Minister for Justice [2011] IEHC 346, (Unrep, Hogan J, 5/9/2011); NN v Minister for Justice [2012] IEHC 499, (Unrep, Clark J, 28/11/2012); Okunade v Minister for Justice [2012] IESC 44; NS v Secretary of State for the Home Department (C-411/10 and C-493/10) (Unrep, ECJ, 21/12/2011); Transocean Marine Paint Association v Commission (Case C-17/74) [1974] ECR 1063 and World Wide Fund v Autonome Provinz Bozen (Case C-435/97) [1999] ECR I-5613 considered - Directive 2004/83/EC, article 4 - Relief granted (2011/8JR - Hogan J - 23/1/2013) [2013] IEHC 9

M (M) v Minister for Justice and Law Reform

Facts The applicant had made an application for asylum to the Refugee Application Commissioner and having been refused appealed to the Refugee Appeal Tribunal. The applicant had claimed that he had a well-founded fear of persecution if returned to his country of origin. Having failed on appeal the applicant made a separate application for subsidiary protection to the Minister for Justice, Defence and Equality. An issue arose as to the extent that the Minister was oblige to give an applicant a separate opportunity to be heard in respect of the subsidiary protection application in the light of the decision of the Court of Justice (Case C-277/2012, 22/11/12).

Held by Hogan J in granting the relief sought and quashing the Minister"s decision: It followed from the judgment in Case C-277/11 that when a Member State had chosen to establish two separate procedures for examining applications for asylum and for subsidiary protection, it was important that the applicant had a guaranteed right to be fully heard in each of the procedures. This did not mean that an oral hearing would be routinely required at subsidiary protection stage. The Minister must decide the subsidiary protection issue without any reliance on prior reasoning contained in the asylum application. In the present case the Minister had relied entirely on the reasons advanced by the Refugee Appeals Tribunal to reject the credibility of the claims made and had failed to afford the applicant an effective hearing at subsidiary protection stage.

M (M) v MIN FOR JUSTICE ECJ CASE C-277/2012

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

M (M) v MIN FOR JUSTICE & ORS UNREP HOGAN 18/5/2011 2011 IEHC 547

REFUGEE ACT 1996 S13(6)(C)

EEC DIR 2004/83 ART 2

EEC DIR 2004/83 ART 4(1)

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

M (M) v MIN FOR JUSTICE (NO.2) UNREP HOGAN 5.9.2011 2011/34/9374 2011 IEHC 346

EEC DIR 2005/85

EEC DIR 2005/85 ART 12

EEC DIR 2005/85 ART 13(3)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 ART 5(1)(B)

TRANSOCEAN MARINE PAINT ASSOCIATION v COMMISSION OF THE EUROPEAN COMMUNITIES 1974 ECR 1063

PEOPLES' MUJAHEDIN ORGANISATION OF FRANCE 2011 ECR I-0000 CASE C-27/09

O (N) v MIN FOR JUSTICE & ORS UNREP RYAN 14.12.2011 2011/13/12250 2011 IEHC 472

J (O) v MIN FOR JUSTICE & AG UNREP CROSS 3.2.2012 2012 IEHC 71

WORLD WIDE FUND v AUTONOME PROVINZ BOZEN 1999 ECR I-5613

D (N)[NIGERIA] v MIN FOR JUSTICE UNREP COOKE 2.2.2012 2012 IEHC 44

BARUA v MIN FOR JUSTICE UNREP MAC EOCHAIDH 9.11.2012 2012 IEHC 456

M (H) v MIN FOR JUSTICE UNREP CROSS 27.4.2012 2012 IEHC 176

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012 IESC 49

1

1. One of the singular features of the Irish system of international protection for refugees is the bi-furcated nature of our system governing applications for asylum on the one hand and subsidiary protection on the other. This means that an applicant for international protection must first apply for asylum and it is only in the event that this request is refused that the issue of subsidiary protection then arises. While it is true, of course, that asylum and subsidiary protection are distinct and different forms of international protection, the material and arguments relied on by the applicant in support of the application will often overlap significantly in both cases.

2

2. It should also be recalled that whereas the asylum application is dealt with in the first instance by the Office of the Refugee Application Commissioner, with an appeal to the Refugee Appeal Tribunal, the application for subsidiary protection is made to the Minister for Justice, Defence and Equality. There is no right of appeal in this latter instance from the administrative decision of the Minister.

3

3. The question which has accordingly arisen in these proceedings is the extent to which the Minister is oblige to give an applicant a separate opportunity to be heard in respect of the subsidiary protection application in view of the decision of the Court of Justice of 22 nd November, 2012, in Case C-277/2012, MM v. Minister for Justice, Equality and Law Reform. This judgment followed a reference which was made by this Court pursuant to Article 267 TFEU in the wake of the first judgment in this case ( MM v. Minister for Justice, Equality and Law Reform [2012] IEHC 547) delivered by me on 18 th May, 2011. Following the delivery of that judgment of the Court of Justice, a further hearing took place on the 20 th December, 2012. Having reserved judgment, I then invited the parties to address me on five specific questions which seemed to me to arise and a further hearing took place on January 11 th, 2013.

4

4. As will shortly be seen, the critical issue which is now before me concerns the determination of what the Court of Justice actually decided in the judgment on that reference and what - if any- are the implications of that judgment when applied to the facts of the present case. But before proceeding to elaborate on this point, it is necessary first to sketch out the facts of the facts and, specifically, to delineate the evolution of the arguments which bear directly or indirectly on the fair procedures question.

The background facts
5

5. The applicant is a Rwandan national of Tutsi ethnicity who arrived here in 2006 for the purposes of pursuing a course of post-graduate legal studies at the National University of Ireland, Galway. When his student visa expired in April 2008 after his graduation, Mr. M. then applied for asylum in the following month. He contended that following his graduation as a law student at the University of Rwanda in 2003, he was directed by the Rwandan authorities to work at the level of Staff Sergeant in the offices of the military prosecutor. Mr. M. stresses the fact that the authorities required him to take up this position, so that he had little or no option in the matter, whereas the Tribunal member in her decision had referred to the fact that Mr. M. had been "offered" a post in the office of military prosecutor.

6

6. In this regard it may be observed that Mr. M. had previously done research work as an undergraduate law student in Rwanda into the legal framework governing the investigation of the Rwandan genocide in 1994. He maintained that his effective conscription into the office of military prosecutor was an attempt to silence him and to prevent him from divulging information regarding the prosecution (or, as the case may be, the non-prosecution) of offences relating to the genocide. The applicant's claim that he had a well founded fear of persecution if returned to Rwanda by reason of these events was, however, rejected by both the Office of the Refugee Application Commissioner and the Refugee Appeal Tribunal.

7

7. In its decision of 28 th October, 2008, the Tribunal rejected the applicant's claim on general credibility grounds, saying that it was difficult to believe that "the applicant would be offered a position as a prosecutor if he was considered a threat or nuisance to the authorities". It was also noted by the Tribunal member in her decision that the applicant had left Rwanda on a number of occasions in 2005. Furthermore, the fact that the applicant did not make an application for asylum shortly after his arrival in Ireland in September, 2006 was also a factor which was found to be inconsistent with a well founded fear. The decision of the Tribunal was never challenged in judicial review proceedings. It may be noted that whereas the applicant had the benefit of a personal interview before the Office of the Refugee Applications Commissioner, the appeal before the Tribunal was in writing only.

8

8. In that latter regard, it may be observed that in its decision of 30 th August 2008 the Commissioner...

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