N.N. (Cameroon) v Minister for Justice

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. CLARK,
• Judgment Date: 28 November 2012
• Neutral Citation: [2012] IEHC 499
• Court: High Court
• Docket Number: [2011 No. 631 JR]
• Date: 28 November 2012

[2012] IEHC 499

THE HIGH COURT

Record No. 631 J.R./2011

N (N) [Cameroon] v Min for Justice & Ors

JUDICIAL REVIEW

Between:/

N. N.[CAMEROON]

APPLICANT

-AND-

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

RESPONDENTS

EEC DIR 2004/83 ART 4(1)

M (M) v MIN FOR JUSTICE C-277/11 UNREP ECJ 26.4.2012

HAUGHEY, IN RE 1971 IR 217

D (N) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 2.2.2012 2012 IEHC 44

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EU ART 47

M(JC) & L (M) (DR CONGO) v MIN FOR JUSTICE UNREP CLARK 12.10.2012 2012 IEHC 485

M (JT) v MIN FOR JUSTICE UNREP HOGAN 11.10.2011 2011/33/9309 2011 IEHC 393

M (JT) v MIN FOR JUSTICE UNREP CROSS 1.3.2012 2012 IEHC 99

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

WA (DRC) v MIN FOR JUSTICE UNREP COOKE 25.6.2012 2012 IEHC 251

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EEC DIR 2004/85 ART 4(4)

GENEVA CONVENTION ART 1C(5)

REFUGEE ACT 1996 S21(2)

GENEVA CONVENTION ART 1C(5) REG 5(2)

UNHCR HANDBOOK 1992 PARA 136

CONSTITUTION ART 15.2.1

KADRI v GOVERNOR OF CLOVERHILL UNREP FENNELLY 10.5.2012 2012 IESC 27

N (FR) & ORS v MIN FOR JUSTICE UNREP CHARLETON 24.4.2008 2008/45/9787 2008 IEHC 107

JT (A MINOR) & ANOR v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

Judicial Review - Asylum - Deportation - Application for subsidiary protection refused - Risk of serious harm - Protection from serious harm - Credibility - Qualification directive - Procedural fairness - air hearing

Facts: The applicant was originally from Cameron. She applied for asylum upon entering the country in February 2008 and applied for refugee status. Her application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected on the basis of a lack of credibility. The applicant was informed by writing of the outcome along with the options available to her including an opportunity to apply for subsidiary protection. She applied for subsidiary protection and leave to remain on humanitarian grounds. This was also refused. The applicant sought leave to challenge the subsidiary protection refusal which was subsequently granted. The challenge consisted of a number of grounds.

The first three grounds related to the fact that Article 4(1) of Council Directive 2004/83/EC (the Qualification Directive) had not been properly implemented into Irish law. The case of M.M. v. Minister for Justice and Equality (Case C- 277/11) had delivered a judgement by the point of this hearing and it was claimed this was related to the applicant's ground of review. That particular case was referred back to the Irish courts for determination in accordance with guidance that had been provided. That case concerned the fact that in Ireland there is two separate procedures for applying for asylum and subsidiary protection and whether it was unlawful to dispense with a hearing in relation to the latter when an application for the former following a hearing had been refused. The applicant contended that the judicial review should be adjourned until a decision was ultimately delivered in the Irish courts.

The next ground related to the statutory definition of "serious harm" within the meaning of the ECs (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) ("the Protection Regulations") given by the respondent in refusing the subsidiary protection application. It was contended that the case of J.T.M. v. The Minister [2011] IEHC 393 concerned the same challenge and it was ultimately found that there had been an error of law. It was suggested that decision was binding. The respondent argued the case of W.A. (DRC) v. The Minister [2012] IEHC 251 where there was a similar finding on different facts and it was determined there was no error of law.

Held by Clark J that the case of M.M. v. Minister for Justice and Equality was of no benefit to the applicant and so there was no reason to adjourn her case. The applicant's application for asylum had been refused on credibility grounds but instead of seeking to judicially review the findings of the Tribunal, she had proceeded to make an application for subsidiary protection on the same facts. She had been represented by legal professionals who were allowed to make detailed submissions on her behalf at the subsidiary protection stage and a further hearing would have not changed the decision that was made.

In relation to the "serious harm" ground, it was found that W.A. (DRC) v. The Minister was a case where the approach was more in keeping with the spirit of the Geneva Convention on the Status of Refugees 1951 and Directive 2004/83/EC than J.T.M which was considered a more narrow and literal approach. It was further held that even if J.T.M. should have been followed, it was not on point in this case as Regulation 5(2), which was the main consideration of the cited cases, only applied to cases where it was accepted there had been past serious harm. In the present case, this had not been accepted.

Application for relief refused.

1 1. The applicant, who has been refused a declaration of refugee status, seeks an order of certiorari quashing the decision of the respondent Minister dated 28 ^th June 2011 that she is ineligible for subsidiary protection. Leave was granted by Cooke J. on 25 ^th July 2011 to challenge the validity of the refusal on five grounds. The applicant also seeks leave to amend her statement of grounds to include one further challenge to the validity of the decision on the basis that she received an incomplete version of the Minister's decision refusing her subsidiary protection and was unaware of the additional defect until a full version was furnished on the day of the hearing. With one possible exception, the existing grounds on which the applicant seeks relief are procedural and unconnected to the facts of her case and were in July 2011 novel in their nature but have since then been considered and rejected.

2 2. The applicant who claims to come from Cameroon applied for asylum in February 2008. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal rejected her claim on credibility grounds but also expressed the view that if her claim were credible, internal relocation within Cameroon would be a viable option for her. The Tribunal decision was not challenged. In May 2009 the Minister informed her of his decision not to grant her refugee status. She then applied through her solicitors for subsidiary protection and humanitarian leave to remain, putting forward the same facts as had previously been found non-credible by the asylum authorities. By letter dated 30 ^th June 2011 she was informed that her subsidiary protection application had been refused and soon afterwards she received a deportation order. These proceedings challenge the subsidiary protection decision.

Failure to Cooperate

3 3. The first three grounds on which leave was granted relate to the argument that the State has failed to properly transpose Article 4(1) of Council Directive 2004/83/EC commonly known as the Qualification Directive into Irish law. Since the substantive hearing in this case the Court of Justice of the EU has delivered judgment on this issue in the case of M.M. v. Minister for Justice and Equality ( Case C-277/11) arising from a preliminary reference made by Hogan J. The CJEU has rejected the argument based on Article 4(1) of the Directive but has given guidance as to the manner in which the right to be heard in all proceedings, which is a fundamental principle of EU law, is to be applied where there are two separate procedures for assessing asylum and subsidiary protection decisions. The CJEU has essentially found that the fact that an applicant is duly heard during the asylum process does not mean the right to be heard can be dispensed with at the subsidiary protection stage. It found that the right to be heard means that an applicant 1 must be afforded a sufficient opportunity to put forward his views before an adverse decision is adopted. In the light of that guidance, the matter will now revert to Hogan J. for a determination as to whether in the case of Mr. M the procedures employed by the Minister when assessing subsidiary protection were compatible with the requirements of EU law. 2

4 4. It seems to this Court that the M.M. judgment does not represent any great departure from the law as it stands. As a matter of basic principle, the right to be heard is not exclusive to EU law. The basic principle of audi alteram partem is a constituent element of our domestic constitutional regime (see e.g. Re Haughey [1971] I.R. 217) and the right to a fair hearing is one of the fundamental rights enjoyed under Article 6 of the European Convention on Human Rights. The rights described in the M.M. judgment were recognised by Cooke J. in N.D. v.The Minister for Justice and Law Reform [2012] IEHC 44, among others.

5 5. In this case, the applicant was legally represented by experienced solicitors when she made detailed written submissions to the Minister in support of her subsidiary protection application. She advanced exactly the same story which she had advanced at the earlier stage and made no submissions as to why the Minister should depart from findings already made about the credibility of her story. She did not challenge the credibility findings by way of judicial review and she did not seek an oral hearing or personal interview with the Minister. No attempt has been made to show how she would have...