M.A. v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 06 May 2015
• Neutral Citation: [2015] IEHC 287
• Court: High Court
• Date: 06 May 2015

[2015] IEHC 287

THE HIGH COURT

[No. 1457 JR/2010]

A (M) v Min for Justice & Ors

No Further Redaction Needed

JUDICIAL REVIEW

BETWEEN

M.A.

APPLICANT

AND

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

RESPONDENTS

Asylum, Immigration & Nationality – Refugee Appeals Tribunal – Appeal against decision of refusal of asylum claim – Fear of persecution – Deportation order – Whether appellant's evidence credible – Lack of fair procedures – Breach of Audi alteram partem.

Facts: The applicant sought an order of certiorari refusing the leave to remain in Ireland and subsidiary protection for a certain period. The applicant was ordered to be deported. The applicant claimed that the respondent had failed to assess the issues.

Mr. Justice Mac Eochaidh held that the application seeking an order of certiorari quashing the subsidiary protection decision would be granted. The Court observed that as an organ of the State, a duty (under Article 4 (3) of the Treaty on European Union) to ensure that the obligations of E.U. law were achieved.

1 1. This is a "telescoped" judicial review of two decisions of the Minister. The applicant seeks certiorari of a decision refusing him subsidiary protection dated 8 ^th October, 2010, and of a deportation order made on the 20 ^th October, 2010.

2 2. This Court has previously ruled on a preliminary issue dealing with the Article 8 E.C.H.R. assessment in the "Examination of file" appended to the deportation order. A decision on that issue is contained in the judgment of this Court in C.I. & M.A. v. Minister for Justice [2014] IEHC 447. The Court found that the Article 8 "private life" rights assessment was deficient.

Background

3 3. The applicant is a national of Afghanistan. He arrived in the State in May of 2005 and made an application for asylum immediately. He completed a questionnaire for this purpose on 20 ^th May, 2005, and was interviewed by the Office of the Refugee Applications Commissioner on 29 ^th September, 2005, and again on the 26 ^th of October, 2005. The applicant claimed to be unable to return to Afghanistan as the government had accused him of being a spy for the Taliban and accused him of killing a regional Governor. He claims that he did not seek State protection because it is the Afghan authorities who are the agents of persecution. A section 13 report was issued on 10 ^lh January, 2006, recommending against refugee status on the basis of lack of credibility. The applicant appealed this decision to the Refugee Appeals Tribunal who affirmed the recommendation of the Commissioner in a decision of the 31 ^st January, 2008, based on the lack of credibility of the applicant and, in the alternative, on the absence of a Geneva Convention nexus.

4 4. The applicant made an application for humanitarian leave to remain and subsidiary protection on 3 ^rd and 4 ^th April, 2008, respectively. He received a decision refusing his application for subsidiary protection under cover of letter of 11 ^th October, 2010, on the basis that he had failed to show that he would face a real risk of suffering serious harm if returned to Afghanistan. By letter of 3 ^rd November, 2010, the applicant received notice of a deportation order issued against him dated 20 ^th October, 2010, with an "Examination of file" under section 3 of the Immigration Act 1999, appended thereto.

Applicant's Submissions

5 5. Counsel for the applicant, Mr. Ian Whelan B.L., makes four broad challenges relating to the subsidiary protection decision, namely that: (i) there was a failure to lawfully assess the issue of internal relocation within Afghanistan; (ii) there was a failure to give reasons and to assess the totality of the country of origin information and weigh it in the balance; (iii) there was a breach of the principle of audi alteram partem; and (iv) there was a failure to adequately assess the issue of State protection in Afghanistan.

6 6. It was pointed out that because no internal relocation decision was made by the Commissioner or by the Tribunal, the first consideration of the issue was by the Minister. It was submitted that the decision that the applicant can relocate to Kabul was made without seeking the applicant's views. Counsel refers to a decision of Cooke J. in S.B.E. v. Refugee Appeals Tribunal [2010] IEHC 133, which he states is identical to this case, to support the contention that the Minister failed to make any assessment of the personal circumstances of the applicant as required by Reg. 7(2) of the E.C. (Eligibility for Protection) Regulations 2006. In supplemental written submissions, it was argued that the decision of this Court in E.I. & A.I. v M.J.E.L.R. [2014] IEHC 27 clarifies that internal relocation decisions should be taken in cooperation with an applicant. The applicant was not personally interviewed in connection with the subsidiary protection decision.

7 7. The applicant also claims a lack of fair procedures and a breach of the principle of audi alteram partem in the context of the failure by the Minister to give the applicant notice of the any of the matters which were considered in refusing his applications. It is said that this is contrary to the approach Clarke J. identified in Idiakheua v. Minister for Justice, Equality & Law Reform [2005] IEHC 150. The applicant refers to a number of cases decided by the Court of Justice of the European Union ("C.J.E.U.") in order to reinforce this view. Counsel refers to the case of Case 17/74 Transocean Marine Paint Association v. Commission [1974] E.C.R. 1063, and specifically paragraph 15 thereof, to submit that there is a general rule of European law that "a person whose interests are perceptibly affected by a decision taken by a public authority must be given the opportunity to make his point of view known".

8 8. It is submitted that the right to due process and natural justice has consistently been reinforced by the C.J.E.U., in Case 28/05 G.J. Dokter & Ors v. Minister van Landbouw, Natuur en Voedselkwaliteit [2006] E.C.R. I-05431 it was stated that:-

"It is equally settled case law that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views on the evidence on which the contested decision is based."

Further, in the decision of Case C-349/07 Sopropé - Organizacoes de Calccado Lda v. Fazenda Pública [2008] E.C.R. I-10369 the C.J.E.U. stated that:-

2 "36. Observance of the rights of the defence is a general principle of Community law which applies where the authorities are minded to adopt a measure which will adversely affect an individual.

37 In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. They must be given a sufficient period of time in which to do so."

9 9. Counsel also refers to the decisions of the Court of Justice in Case C-141/08 Foshan Shunde Yongjian Housewares & Hardware Co. Ltd v. Council of the European Union [2009] E.C.R. I-09147 and Case T/112/07 Hitachi Ltd, Hitachi Europe Ltd and Japan AE Power Systems Corp. v. European Commission [2011] E.C.R. II-03871 in support of his submission that, if a decision maker intends to make a decision refusing an applicant subsidiary protection or leave to remain in the State, he is obliged under national and European law to ensure that the individual is made aware of what information the decision maker relies upon to ground the refusal. It is submitted that in this case the applicant was not informed of the information the Minister relied upon to refuse his claim, nor did the Minister communicate with him at all. Further, the applicant's position is said to be worsened owing to the fact that he does not have an appeal against the decision as he would have under the E.U. (Subsidiary Protection) Regulations 2013.

10 10. Finally, it is submitted that the applicable test in respect of state protection contained in Regulation 2 of the E.C. (Eligibility for Protection) Regulations 2006 was not applied in the assessment of the protection available to the applicant and the consideration employed by the Minister is invalid.

The Respondent's Submissions

11 11. Counsel for the respondent, Ms. Sinead McGrath B.L., submits that the applicant's subsidiary protection application is based on the same set of facts as those outlined in his asylum claim, which was rejected for a lack of credibility. She notes that the applicant also submitted extracts from country of origin reports detailing general insecurity and violence in Afghanistan and that he submitted that his home State could not provide him with meaningful protection. Counsel also observes that no submissions were made in relation to internal relocation by the applicant, save to request that the Minister would not consider it in his case.

12 12. The respondent submits that the examination of the subsidiary protection application provided a comprehensive analysis of the applicant's claim and was based on up to date country of origin information. In this regard, counsel notes that the separate elements of the claim were fully analysed, namely whether he would be at risk from: (a) the Hezb-i-Islami; (b) due to the alleged killing of the uncle of Commander of Mazar-i-Sharif; (c) because he was a spy for the...