M (P)(Botswana) v Min for Justice and Others (No.3)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] IEHC 271 |
| Court | High Court |
| Date | 14 June 2013 |
[2013] IEHC 271
THE HIGH COURT
AND
M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259
REFUGEE ACT 1996 S13(6)(A)
REFUGEE ACT 1996 S17
EEC DIR 2005/85 ART 39(1)
EEC DIR 2005/85 CHAP V
EEC DIR 2005/85 RECITAL 27
D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 31
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
M (P) [BOTSWANA] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 31.1.2012 2012/24/6866 2012 IEHC 34
DIOUF v MINISTRE DU TRAVAIL 2012 1 CMLR 8
D (HI) (A MINOR) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 9.2.2011 2011/10/2306 2011 IEHC 33
EEC DIR 2005/85 ART 39
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
Z (S) [PAKISTAN] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 1.3.2013 2013 IEHC 95
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)
EEC DIR 2005/85 ART 4(1)
M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9
COX v ELECTRICITY SUPPLY BOARD (NO 2) 1943 IR 231 1942 76 ILTR 122
MCINERNEY HOMES LTD, IN RE UNREP SUPREME 22.7.2011 2011 IESC 31
Asylum & Immigration law- Judicial review- Subsidiary protection- New Ground- Court of Justice- Botswana National- Exceptional circumstances- Whether applicant could rely on decision of the Court of Justice.
Facts: The Court considered the application of a decision of the Court of Justice to the proceedings of an applicant and whether there could be new grounds of challenge where the new ground had not been properly advanced or pleaded. The applicant was a Botswana national who sought asylum and had been refused on credibility grounds. She applied for subsidiary protection and had sought to argue that the implementing legislation for the Procedure Directive 2005/85/EC was ultra vires. The Court considered the impact of Case C-175/11 MM v. Minister for Justice, Equality and Law Reform, 22 November, 2012.
Held by Hogan J. that there were circumstances where the Court could reopen an otherwise final judgement in exceptional circumstances. The Court would grant her leave to argue reliance upon the decision of the Court of Justice in MM with respect to the subsidiary protection issue but would refuse leave as far as any arguments based upon Article 39 of the Procedures Directive and effective remedy were concerned.
1. How should this Court respond to a judgment of the Court of Justice in separate proceedings which might be thought to present an applicant with new grounds to challenge an administrative decision when that new ground of challenge has not heretofore properly been advanced or perhaps even pleaded before the national court? This is a difficult issue presented by this application for leave to amend existing judicial review proceedings in order to raise this new issue. What is the national court to do when the applicant now indicates in the wake of the judgment on the reference that he or she wishes to rely on this new point? This is essentially the dilemma which, as we shall see, now confronts the Court following the delivery of the judgment of the Court of Justice in Case C-175/11 in MM v. Minister for Justice, Equality and Law Reform on 22 nd November, 2012.
2. The background to the present application is as follows: the applicant is a Botswanan national who arrived in the State in January, 2009 when she was just thirty years of age whereupon she sought asylum. This is now the third judgment delivered in her case. I propose first to rehearse briefly the facts of her case before setting out the issues which arose in the earlier two judgments. I will then consider the issues which have separately given rise to this judgment.
3. The applicant is a Pentecostal Christian and a pygmy. Fundamental to the applicant's asylum claim was her contention that by reason of her pygmy status she would not be in a position to resist the instruction of her local villagers and family members that she take up a position as a fetish priestess, a position which would be inconsistent with her own deeply personal Christian beliefs. She had contended that the village elders had insisted that she become a fetish priestess at the age of thirty and for that purpose she was abducted and taken to local caves. Ms. M. nevertheless maintains that she was able to escape when she was left unguarded after the induction ceremony had commenced when the elders went to gather some roots.
4. Some time later after she had travelled to Gaborone to stay with an aunt, there was a confrontation with the village elders and other family members who insisted that she return to her local village for training as a fetish priestess. She then travelled to the UK in December, 2008 with a view to travelling on to Ireland. She was, however, refused entry to the UK and returned to Botswana. She then says that she travelled to Ireland with the assistance of a friend via South Africa and Turkey.
5. On 27 th March, 2009, the Office of the Refugee Applications Commissioner ("ORAC") recommended that she be refused refugee status on the basis that her claim lacked credibility. This was affirmed by the Refugee Appeal Tribunal by decision of 6 th December, 2009. On 22 nd January, 2010, the Minister refused a grant of refugee status to the applicant. An application for subsidiary protection was refused on 17 th January, 2011. The process culminated in the making of a deportation order by the Minister for Justice, Equality and Law Reform on 26 th January, 2011.
6. It may be noted that the following an assessment of the claim, the ORAC made a recommendation pursuant to s. 13(6)(a) of the Refugee Act 1996("the 1996 Act")(as amended) on the basis that, in the statutory language, the application "showed either no basis or a minimal basis for the contention that the applicant is a refugee". As a result of this recommendation, the hearing before the Tribunal proceeded without an oral hearing. It is also, however, important to observe that at no stage did the applicant ever challenge the validity of the Tribunal determination.
7. The ORAC rejected the applicant's account on a variety of credibility grounds. Thus, for example, it was found that she had given few details regarding what is said to have occurred to her in Botswana. On her own account she had been left unguarded and was allowed to escape, yet she nonetheless returned to her home village following the abduction and where she was not abducted again. This narrative was considered by ORAC to amount to "incoherent and implausible testimony". The fact, moreover, that the applicant had not applied for asylum when she transited through South Africa and Turkey on her way to Ireland was regarded as a negative credibility factor, as was the fact that she had not applied for asylum in the UK when she was refused entry there in December, 2008. The applicant moreover appeared to be unfamiliar with the fundamental doctrines of the Assemblies of God, Pentecostal Church of which she claims to have been a member for the best part of then years. This finding was affirmed by the Tribunal decision and the Tribunal member broadly endorsed the negative credibility assessment.
8. Ms. M. then applied for subsidiary protection in March, 2010 and this was then rejected by the Minister in January, 2011. No independent assessment of the applicant's credibility was conducted by the Minister who instead relied on the findings of the Tribunal. The Minister concluded that because of doubts concerning her credibility, the applicant did not warrant getting the benefit of the doubt.
9. When the application for leave to apply judicial review was first heard by me in July, 2011 the applicant sought to challenge the validity of the subsidiary protection decision, the refusal of refugee status and the making of the deportation order. The applicant's case had nevertheless been confined in essence to the single question of whether she had available to her an effective remedy in respect of the decision of the Minister to refuse to grant her a declaration of refugee status under s. 17 of the 1996 Act.
10. In my judgment delivered on 28 th October, 2011 ("the first judgment") I noted that the applicant's case was squarely based on the contention that the 1996 Act was ultra vires the provisions of Article 39(1) of the Procedures Directive 2005/85/EC (which provision is contained in Chapter V of the Directive) on the basis that no effective remedy has been provided against the decision of the Minister to refuse the applicant a declaration of refugee status. Article 39(1) provides:-
"Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:"
(a) a decision taken on their application for asylum…"
11. I also noted that recital 27 of the Directive provides that:
"It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court to tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also, with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State."
12. I then proceeded to hold that:
"I am of the view that even if the Minister's decision to refuse to grant the applicant a declaration of refugee status under s. 17(l)(b) of the 1996 Act comes within the scope of Article 39.1 of the Procedures Directive, this will be of little consequence in itself, since the Irish law of judicial review guarantees her an effective remedy. The applicant has not in any event...
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