N.M. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 February 2018
• Neutral Citation: [2018] IEHC 186
• Docket Number: [2012 No. 1013 J.R.]
• Court: High Court
• Date: 27 February 2018

BETWEEN

N.M. (Georgia)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 186

[2012 No. 1013 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Certiorari – Subsidiary protection – The International Protection Act 2015 – O. 84 r. 20(3) of the Rules of the Superior Courts.

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent for the rejection of the subsidiary protection claim of the applicant. The applicant claimed that there was breach of right to be heard and lack of independence of the decision-maker. The applicant contended that the application of the principle of equivalence of effectiveness required that an order of certiorari be granted.

Mr. Justice Richard Humphreys dismissed the application made by the applicant. The Court found that the applicant had full opportunity to make submissions in respect of his application for the subsidiary protection and the matter pleaded did not give rise for an order of certiorari.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of February, 2018

1 This case is the first to be heard at High Court level in the wake of the substantive resolution of the nine-year M.M. saga, which culminated recently in the Supreme Court judgment in M.M. v. Minister for Justice and Equality [2018] IESC 10 (Unreported, Supreme Court, 14th February, 2018). O'Donnell J. said at para. 31 of that judgment that: ' The decision of this Court may bring to a close this act in this long running drama, but it is unlikely to be the last scene.' He went on to say that: ' It is difficult to be enthusiastic about the decision making process to date, even though characterised by conscientious and well meaning decisions at each stage, or to be optimistic about the future progress of this and related cases.'

2 As regards the future progress of related cases, this is the first of the fallout cases, of which there appear at present to be 43 in the High Court. Given that the present case has been heard within two weeks of the Supreme Court judgment, that possibly can be regarded as a start to progressing the outstanding matters as envisaged by O'Donnell J.

Facts

3 The applicant applied for asylum in the State on 29th August, 2005. On 1st March, 2006 that application was rejected by the Refugee Applications Commissioner. On 23rd June, 2008 an appeal to the Refugee Appeals Tribunal was also rejected. On 5th September, 2008 a proposal to deport was issued to the applicant, setting out her options including the possibility of applying for subsidiary protection. On 26th September, 2008 the applicant applied for subsidiary protection. That application was refused on 29th July, 2011.

4 On 7th October, 2011 the applicant's first judicial review [2011 No. 498 J.R.] was instituted, challenging the subsidiary protection refusal. Certiorari of that decision was granted on consent on 22nd March, 2011. On 21st September, 2011 a deportation order was made in respect of the applicant. On 7th June, 2012 a further application for subsidiary protection was made. That was refused on 20th November, 2012. On 17th December, 2012, leave to challenge that subsidiary protection decision was granted by McDermott J., giving rise to these proceedings. The statement of opposition was delivered on 19th April, 2013 and the matter remained on hold for nearly five years thereafter, awaiting the resolution of the M.M. proceedings.

5 I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicant and Mr. David Conlan Smyth S.C. (with Ms. Fiona O'Sullivan B.L.) for the respondents.

Grounds of challenge

6 The statement of grounds sets out seven grounds, numbered 1 to 3, followed by two ground 4s and then grounds 5 and 6. Leave in the case was only granted in respect of grounds 1, 2 and 3.

Ground 1 - Breach of the right to be heard

7 Insofar as this ground claims the right to an oral hearing, that is not being pursued by the applicant in the light of the Supreme Court decision in M.M. v. Minister for Justice and Equality. In written and oral submissions, further complaints are made ranging way beyond the ground as pleaded as follows:

(i) That different country information was used, of which the applicant was not aware. That point fails for the reasons set out in my judgment in Y.Y. v. Minister for Justice and Equality (No. 1) [2017] IEHC 176 [2017] 3 JIC 1306 (Unreported, High Court, 13th March, 2017) and by the Supreme Court in its judgment in Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109.

(ii) The applicant had no way of knowing...