M (M) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 18 May 2011
• Neutral Citation: [2011] IEHC 547
• Court: High Court
• Date: 18 May 2011

[2011] IEHC 547

THE HIGH COURT

[No. 8 J.R./2011]

M (M) v Min for Justice & Ors

BETWEEN

M. M.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EEC DIR 2004/83 ART 4(1)

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

N (FR) & ORS v MIN FOR JUSTICE 2009 1 IR 88 2008/45/9787 2008 IEHC 107

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(3)(B)(ii)

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011/26/6999 2011 IEHC 66

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

H (P) v IRELAND & ORS 2006 2 IR 540 2006/27/5782 2006 IEHC 40

EEC DIR 2004/83 ART 4(2)

IMMIGRATION LAW

Asylum

Application for judicial review - Refusal of subsidiary protection - Asylum refused on credibility grounds - Cooperation with applicant - Applicant not informed of material considered by decision maker - Interpretation of treaty - Following decisions of other High Court judges - Desirability of reference to ECJ - Language texts of Directive - Decision of Dutch Council of State - Whether duty to communicate with applicant during assessment - Whether duty to supply applicant with results of assessment before negative decision made - Whether breach of fair procedures - Ahmed v Minister for Justice, Equality and Law Reform, (Unrep, ex tempore, Birmingham J, 24/3/2011); FN v Minister for Justice, Equality and Law Reform [2008] IEHC 107, [2009] 1 IR 88; I v Minister for Justice, Equality and Law Reform [2011] IEHC 66, (Unrep, Hogan J, 22/2/2011); Irish Trust Bank Ltd v Central Bank of Ireland [1976] ILRM 50; PH v Ireland [2006] IEHC 40, [2006] 2 IR 540 and In re Worldport Ltd [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Council Directive 04/83/EC, arts 4(1), 4(2) and 4(3)(b)(ii) - Treaty on the Functioning of the European Union, art 267 - Question referred to ECJ; proceedings stayed (2011/8JR - Hogan J - 18/5/2011) [2011] IEHC 547

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

Facts: Following refusal of an asylum application on the pretext of a fear of persecution, the applicant sought an order challenging the validity of the subsidiary protection decision. The applicant claimed that the respondent had failed to assess the issues. The applicant sought the interpretation of art. 4(1) of the Directive.

Mr. Justice Hogan held that the present question of law would be referred to the Court of Justice in accordance with art. 267 TFEU. Accordingly, the Court held that the present application would be stayed pending the outcome of the reference.

1 1. The object of Council Directive 2004/83/EC ("the Qualification Directive") may be said to prescribe certain minimum standards for the qualification and status of third country nationals who seek international protection. The Qualification Directive was transposed into our domestic law by means of the European Communities (Eligibility for Protection) Regulations 2006 S.I. No. 518 of 2006)("the 2006 Regulations"), As we shall shortly see, this application for judicial review turns on a question of the interpretation of Article 4(1) of the Directive.

2 2. This application arises in the following fashion. The applicant, M.M., is a Rwandan refugee of Tutsi ethnicity who has sought asylum in Ireland. He contends that if returned to his home state he may be prosecuted before a military court for openly criticising the manner in which investigations into the 1994 genocide were being carried out.

3 3. Mr. M. studied law at the National University of Rwanda and graduated with a degree in 2003. After this graduation, he sought employment within the civil service. He contends that he alone of his graduating class was refused a position, despite his qualifications and that he was instead coerced to accept a position as a prosecutor in the office of the military prosecutor. It is said that this appointment represented an endeavour to silence him and to prevent him from divulging information regarding the genocide which might be uncomfortable for the authorities. Mr. M. claims that he was advised not to protest and that another military office was killed when he started to ask awkward questions about the conduct of the investigations.

4 4. In June 2006 Mr. M. was admitted to study for degree of LL.M. at the Faculty of Law, National University of Ireland, Galway. He later obtained an Irish visa in September, 2006 and thereafter studied in Ireland for just over twelve months.

5 5. Mr. M. graduated from NUIG in November, 2007 where his thesis work concerned the rights of victims of international crime, including the rights of persons affected by the Rwandan genocide. Upon graduating, Mr. M. engaged in further work concerning war crimes and genocide, but on 21 ^St May, 2008, he applied for asylum.

6 6. His asylum application was originally refused by the Refugee Appeals Commissioner on 30 ^th August, 2008 This decision was affirmed on appeal by a decision of the Refugee Appeals Tribunal on 28 ^th October, 2008. In essence, Mr. M.'s claim was rejected because the applicant's individual claim of persecution was found not be credible. Thus, for example, the Tribunal concluded that:-

"The applicant appears to have had freedom while working for the authorities and he was able to leave and return to the country a number of times in 2005 (see stamps on passports), The fact that the applicant worked for the authorities for over a year without any difficulties raises serious credibility issues with the applicant's account and seriously undermines the well foundedness of his fear."

7 7. The Tribunal went on to observe that if the applicant were considered to be a real threat to the authorities "it is highly unlikely that they would have given him a position working with them, particularly where this position would allow the applicant to have access to further information on the genocide."

8 8. Mr. M. then applied for subsidiary protection under the terms of the 2006 Regulations and this was refused by decision of 24 ^th September, 2010. The Minister relied heavily on the earlier asylum decisions for his conclusion that the applicant had not established that there were substantial grounds for considering that he was at risk of serious harm in the light, in particular, of the serious credibility doubts which attended the application.

9 9. The applicant thereafter commenced these judicial review proceedings on 6 ^th January, 2011, in which the validity of the subsidiary protection decision was challenged. Leave to apply for judicial review was granted by this Court (Cooke J.) on 18 ^th January, 2011.

Article 4(1) of the Directive

10 10. There is effectively only one issue before the Court, namely, the proper construction of Article 4(1) of the Directive. This provides:

"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."

11 11. Mr. M. contends that the effect of the latter sentence is that the authorities of the Member States are under a duty to communicate with an applicant for international protection during the course of the assessment of an application. Specifically, it is contended that in the event of a proposed decision which is adverse to an applicant this duty of co-operation means that the authorities are obliged to supply a draft decision in advance to such applicant for his or her comments.

The decision in Ahmed v. Minister for Justice, Equality and Law Reform

12 12. Before examining the question of the construction of Article 4(1), it is appropriate to observe at the outset that this general issue was considered in some detail by Birmingham J. in Ahmed v. Minister for Justice, Equality and Law Reform, High Court, 24 ^th March, 2011. Here the applicant was an Iraqi national of Kurdish ethnicity who sought asylum on the ground that he had been targeted by Islamic groups in Iraq. When this application was rejected on credibility grounds, Mr. Ahmed sought subsidiary protection.

13 13. Unlike the decisions of the Refugee Applications Commissioner and the Refugee Appeal Tribunal dealing with asylum, the decision of the Minister on the subsidiary protection application also dealt with the question of internal location in the three northern provinces of Iraq. The material submitted on behalf of the applicant in March 2010 included UNHCR Guidelines dating from 2007 dealing with the general security situation in Iraq; the extent to which Iraqi asylum seekers needed international protection and the question of whether internal relocation was a possibility, in particular with regard to the three northern provinces.

14 14. It is, of course, well known that the security situation in Iraq had improved considerably in the period between...