M (N) v Min for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barr
• Judgment Date: 18 December 2014
• Neutral Citation: [2014] IEHC 638
• Date: 18 December 2014

[2014] IEHC 638

THE HIGH COURT

[No. 209 J.R./2013]

M (N) v Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996(AS AMENDED),

IN THE MATTER OF THE IMMIGRATION ACT 1999, EU COUNCIL DIRECTIVE 2005/85, S.I. 51 OF 2011 EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGULATIONS 2011 AND SECTION 5 OF ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN/

N.M.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S17

IMMIGRATION ACT 1999 S3(11)

REFUGEE ACT 1996 S17(7)

EEC DIR 2005/85 ART 39

EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGS 2011 SI 51/2011

EEC DIR 2005/85 ART 32

EEC DIR 2005/85 ART 34

EEC DIR 2005/85 ART 39(1)(C)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

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

M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV)

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1986 2 CMLR 430 1984 ECR 1891

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

WILSON v ORDRE DES AVOCATS DU BARREAU DE LUXEMBOURG 2006 ECR I-8613 2007 1 CMLR 7 2007 AER (EC) 403

EEC DIR 98/5 ART 9

EEC DIR 2005/85 ART 39(1)

EEC DIR 2005/85 ART 8(3)

EEC DIR 2005/85 CHAP V

EEC DIR 2005/85 ART 8(2)(B)

EEC DIR 2005/85 ART 33

EEC DIR 2005/85 ART 15

EEC DIR 2005/85 CHAP II

EEC DIR 2005/85 ART 15(3)(A)

N (SU) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

REFUGEE ACT 1996 S17(7G)

EEC DIR 2005/85 ART 34(3)(A)

EEC DIR 2005/85 ART 32(3)

REFUGEE ACT 1996 S13(6)

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 809 2013 AER (D) 74 (FEB)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

DIOUF v MINISTRE DU TRAVAIL 2012 1 CMLR 8 2011 ECR I-7151

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 39(3)

EEC DIR 2005/85 ART 32(1)

EEC DIR 2005/85 ART 32(2)

EEC DIR 2005/85 ART 32(6)

REFUGEE ACT 1996 S17(7D)

REFUGEE ACT 1996 S17(7E)

EEC DIR 2005/85 ART 10(1)

EEC DIR 2005/85 ART 34(2)

EEC DIR 2005/85 RECITAL 27

SAFALERO SRL v PREFETTO DI GENOVA 2003 ECR I-8679 2003 AER (D) 67 (SEP)

M (P) [BOTSWANA] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 31.1.2012 2012/24/6866 2012 IEHC 34

G (C) & ORS v BULGARIA 2008 47 EHRR 51 2008 ECHR 349

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

ALBERT & LE COMPTE v BELGIUM 1983 5 EHRR 533

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

CONSTITUTION ART 40.3.2

LOFINMAKIN & AMONUSI v MIN FOR JUSTICE & ORS UNREP COOKE 1.2.2011 2011/31/8618 2011 IEHC 38

B (J) (A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296

D (HI) (A MINOR) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 22.3.2013 2013 IEHC 146

Asylum - s.17 (7) Refugee Act 1996 - Readmission to the asylum process - Review of decision - Entitlement to review of decision - Adducing fresh evidence - Lawfulness of procedure - European Communities (Asylum Procedures) Regulations 2011 - Council Directive 2005/85/EC - Article 39 - Whether judicial review "effective remedy" as required by Article 39 - Certiorari

Facts The applicant is a national of the Democratic Republic of Congo (DRC). She arrived in Ireland and made a claim for asylum on 25 ^th April 2008. The Refugee Applications Commissioner refused her application. The Refugee Appeals Tribunal upheld this decision. The Minister refused her a declaration of refugee status pursuant to s.17 Refugee Act 1996. On 30 ^th March 2011 the applicant consequently applied for subsidiary protection. She claimed she was at risk of torture/inhuman and degrading treatment in her country of origin. The Minister rejected this contention and in September 2011 a deportation order was made against her. Her solicitors therefore made an application pursuant to s.3 (11) Immigration Act 1999 seeking revocation of the order. In October 2012, pursuant to s.17 (7) Refugee Act 1996, the applicant sought readmission to the asylum process. This was refused, however the applicant was entitled to a review of the decision. The applicant"s solicitor contended that the review process proposed by the Minister did not accord with the provisions of Council Directive 2005/85/EC and Article 39 thereof. The basis of the applicant"s s. 17(7) application seeking readmission to the asylum process and to be permitted to have her further application fully investigated was owing to the presentation of fresh information. The key issue raised in the proceedings was whether the procedure set out in the European Communities (Asylum Procedures) Regulations 2011 was lawful having regard to the provisions of the Procedures Directive and in particular Article 39.

Law The procedure under s. 17(7) provides that the Minister will carry out a preliminary examination to see if the applicant for readmission to the asylum process has provided new elements or findings relating to the examination of whether that person qualifies as a refugee. The Minister"s consent shall be given if, following the preliminary examination, new elements or findings are put forward by the applicant which significantly add to the likelihood of qualifying as a refugee. The applicant must establish that she was, through no fault of her own, incapable of presenting these findings for the purpose of her previous application. Article 39 of the Directive provides that Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against a decision not to further examine the subsequent application pursuant to Article 32 and 34 of the Directive.

Held The applicant argued the review provided for in the statutory instrument did not constitute an effective remedy before a court or tribunal. The respondent accepted that this was the case but indicated the remedy of judicial review before the High Court could in fact constitute an effective remedy. The applicant disagreed referring to the limitations on the jurisdiction of the court when considering a judicial review application. The judge stated that the applicant, if dissatisfied with the decision made by the Minister, could only apply to the court if she could identify some fault by the decision-maker in the decision-making process. The judge stressed she was only permitted to seek annulment of the decision on one of the grounds on which certiorari is customarily granted by the court. Thus, the court was satisfied that the review procedure under the statutory instrument and the supervisory role of the High Court in exercising its judicial review jurisdiction did not constitute an effective remedy before a court or tribunal as required by Article 39 of the Directive.

- The Ministerial review decision dated 7th February 2013 could not stand

Background

1 1. The applicant is a national of Democratic Republic of Congo ("DRC"). She applied for asylum in the State on 25 ^th April, 2008. Her claim was based on her alleged Rwandan parentage and an allegation that she was a spy and therefore at risk from the authorities in the DRC. Her claim was unsuccessful before the Refugee Applications Commissioner ("RAC"). The Refugee Appeals Tribunal ("RAT") in a decision dated 18 ^th February, 2011, rejected her claim. Detailed credibility findings were made against the applicant. This decision was not challenged.

2 2. The Minister then refused her a declaration of refugee status pursuant to s. 17 of the Refugee Act 1996 (as amended). By an application dated 30 ^th March, 2011, the applicant applied for subsidiary protection. She claimed that she was at risk of tortureor inhuman or degrading treatment or punishment in her country of origin. She relied on the details provided in her asylum claim. On 8 ^th August, 2011, the Minister refused her application for subsidiary protection. That decision has not been challenged.

3 3. On 7 ^th September, 2011, a deportation order was made in respect of the applicant. Subsequent to that, the applicant through her current solicitors, made an application pursuant to s. 3(11) of the Immigration Act 1999, seeking revocation of the deportation order made in respect of her. That application still remains outstanding.

4 4. By letter dated 24 ^th October, 2012, an application pursuant to s. 17(7) of the Refugee Act 1996 (as amended) was submitted on behalf of the applicant, seeking the consent of the Minister to her readmission to the asylum process. This application was the subject of a first instance refusal by the Minister. This was notified to the applicant by letter dated 23 ^rd November, 2012. This letter advised the applicant that she was entitled to a review of the negative first instance decision.

5 5. The applicant applied for a review of the first instance decision. This review was carried out by a more senior officer in the Ministerial Decisions Unit of the respondent. By letter dated 4 ^th January, 2014, the applicant's solicitor wrote to the MDU advising that the review process proposed by the Minister did not accord with the provisions of the Council Directive 2005/85/EC of 1 ^st December, 2005, on minimum standards on procedures in Members States for granting and withdrawing refugee status ("the Procedures Directive"), and Article 39 thereof, which entitled the applicant to an effective remedy before a court or tribunal against a decision not to further examine a subsequent application for asylum and the letter outlined that thereview should be conducted by an independent court or tribunal. Enclosed with that letter were detailed grounds of review in respect of the first instance refusal decision.

6 6. Within the body of the grounds of review at para. 1 thereof, the issue raised in the letter of 4 ^th January, 2014, regarding entitlement to a...