MM v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IESC 10
• Date: 14 February 2018
• Court: Supreme Court
• Docket Number: Appeal No. 123/2013 Appeal No. 404/2013 Appeal No. 212/2013 High Court Record No. 2011/8JR

Between:

MM

Applicant/Respondent

AND

The Minister for Justice and Equality, Ireland

And

the Attorney General

Respondents/Appellants

[2018] IESC 10

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

O'Malley Iseult J.

Appeal No. 123/2013

Appeal No. 404/2013

Appeal No. 212/2013

High Court Record No. 2011/8JR

SUPREME COURT

Subsidiary protection - Judicial review - Order of certiorari - Applicant seeking subsidiary protection - Whether a full oral hearing was required

Facts: The applicant/respondent, a national of Rwanda, on the 31st December 2008, made an application for a subsidiary protection pursuant to European Communities (Eligibility for Protection) Regulations 2006 (S.I. 518/2006). The application was rejected by the first respondent/appellant, the Minister for Justice and Equality, by a decision of the 24th September 2009. Leave to seek judicial review was granted and the substantive hearing came on in the High Court before Hogan J in April 2011. Hogan J made a reference to the European Court of Justice (ECJ) pursuant to Article 267 of TFEU and granted an interlocutory injunction restraining the deportation of the applicant pending the resolution of the matter. The ECJ, on the 22nd November 2011, rejected the applicant's central argument concerning the interpretation of Article 4(1) of Directive 2004/83/EC (the Qualification Directive). The ECJ went on to make further observations to assist the national court. At that point two aspects of the intersection between Irish proceedings, and those before the ECJ combined to cause potential misunderstanding. The High Court heard argument on the appropriate order to make in the light of the guidance offered by the decision of the ECJ.The parties took up widely divergent positions on the import of the observations made by the ECJ. The State parties maintained that the process followed in Ireland was consistent with the right to a hearing within the jurisprudence of the ECJ. The applicant contended that a full oral hearing was required, with, if necessary, a right to call witnesses and cross-examine adverse witnesses. The decision of the High Court was delivered on the 23rd January 2013. The trial judge sought an intermediate course, and deduced that certain procedures were required which bore traces of Irish administrative law concepts. Inevitably since the process adopted by the Minister had not accorded with this procedure, it followed that the High Court considered it was necessary to quash the determination of the Minister of the 24th September 2010. The Minister appealed the decision to the Supreme Court and the applicant cross-appealed. The matter came before the Supreme Court on the 6th March 2014. The Court concluded that it was necessary to make a further reference to the ECJ. The question referred to the ECJ was as follows: "Does the 'right to be heard' in European Union law require that an application for subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?" On the 9th February 2017, the ECJ decided that a written procedure wasnotincompatible with the right to be heard in European law.

Held by the Supreme Court (O'Donnell J) that the decision of the ECJ made it clear that it in the Irish context which existed at the time of the decision, and where the decision on subsidiary protection was a separate decision taken after the determination of the asylum process, it was permissible to make that decision on the basis of a written procedure, so long as the procedures adopted were sufficiently flexible to allow the applicant to make his case; that was plainly the case. O'Donnell J noted that, exceptionally, it may be necessary to permit an oral interview. O'Donnell J held that it could not be contended that such an exceptional situation arose; the submission seeking subsidiary protection identified only those matters which had already been relied on in the claim for asylum. O'Donnell J held that the decision of the ECJ also made it clear that it was permissible to have regard to the information obtained in the asylum process, and the assessment of the decision-maker. O'Donnell J held that there was, in this case, no basis for contending for an oral hearing, still less for an adversarial hearing.

O'Donnell J held that the appeal must be allowed, the order ofcertiorarimade by the High Court must be set aside, and the application for judicial review must be dismissed.

Appeal allowed.

Judgment of O'Donnell J delivered the 14th day of February 2018

1 This is the latest, but it is probably too much to be hoped that it is the last, episode in a long running legal saga. In 2006 the applicant, a national of Rwanda, of Tutsi ethnicity, came to Ireland for the purposes of post graduate study of law at NUIG. His student visa expired in April 2008 and the following month he applied for refugee status. The essence of the claim was, that having graduated from the University of Rwanda, he had been directed to work in the Office of the Military Prosecutor and given the rank of staff sergeant. He maintained that this was an effort to silence him and prevent him from divulging information about the prosecution or non prosecution of offences relating to the genocide in Rwanda.

2 The applicant was interviewed by the Office of the Refugee Appeals Commissioner ('ORAC') but his application was refused. The applicant appealed that decision to the Refugee Appeals Tribunal ('RAT') which on the 28th of December 2008 rejected his claim on what have been described as 'general credibility grounds', essentially that it was difficult to believe that the applicant had been offered a position of prosecutor and given the opportunities he was, if he had been considered a threat or a nuisance by the Rwandan authorities. That decision was not challenged by judicial review.

3 On the 31st of December 2008, the applicant made an application for a subsidiary protection pursuant to European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518/2006) (The '2006 Regulations') which has become the subject matter of these proceedings. It was stated that he faced a real risk of 'serious harm' within the meaning of Article 2 of Directive 2004/83/EC (the 'Qualification Directive') on essentially the same grounds which had been advanced and rejected in relation to the application for asylum status. Further material was submitted on behalf of the applicant, but the application was rejected by the respondent Minister by a decision of the 24th of September 2009, which it is now sought to quash in these proceedings.

4 The assessment by the Minister was made within the Department of Justice and Equality originally by an Executive Officer, considered and approved by a Higher Executive Officer, and then determined by an Assistant Principal. The assessment considered country of origin information and concluded that while there had been incidents of violence, a situation of armed conflict did not exist in Rwanda at the relevant time and accordingly the relevant decision-maker was not satisfied that the applicant had demonstrated that he was without protection in Rwanda. There were not therefore substantial grounds for believing that he would be at risk of serious harm by death penalty or execution, torture or inhuman or degrading treatment or that there was a serious individual threat to civilian life or person by reason of indiscriminate violence or a situation of international or internal armed conflict (as set out in Article 15) in Rwanda, if returned there. The decision made specific reference to the prior decision of the RAT at subparagraph (vii). Subhead (viii) is headed 'Applicant's credibility and whether benefit of doubt should be given: Re Regulation 5(3)'. This section quoted in detail the assessment of the applicant's application for refugee status and concluded 'because of the doubt surrounding his credibility the applicant does not warrant the benefit of the doubt'. The reference to, and apparent reliance on, the RAT decision and in particular the reference to 'credibility' has been central to this case.

5 At this point it may be useful to pause and recollect that as of the time of consideration of the application for subsidiary protection in 2009 despite the very significant degree of overlap between the tests for refugee status and subsidiary protection, Ireland operated what has been described as a bifurcated system of assessment for international protection. Applications for refugee status were dealt with under the refugee appeals process first before ORAC, and then on appeal to RAT, while as this case shows application for subsidiary protection pursuant to the Regulations of 2006 were made to the Minister. The development of these separate procedural strands may have reflected nothing more than an incremental development of the law, different legal sources, and different timing. Relatively recently, the two processes have been amalgamated in the application for international protection under the International Protection Act 2015. However at the time of MM's application, they were dealt with separately, and as can be seen, sequentially. Indeed Article 4 of the 2006 Regulations provided that the Minister was only obliged to consider an application for subsidiary protection from an applicant to whom s.3(2) of the Immigration Act 1999 applied, that is, a person whose application for asylum had been refused by the Minister. That bifurcated, sequential system gave rise to a number of systemic challenges...