Osaghe v Min for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kevin Cross |
| Judgment Date | 20 April 2012 |
| Neutral Citation | [2012] IEHC 153 |
| Court | High Court |
| Date | 20 April 2012 |
[2012] IEHC 153
THE HIGH COURT
BETWEEN
AND
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006
EEC DIR 2004/83
EEC DIR 2004/83 ART 4.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47
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EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S5(2)
Immigration and asylum – Refugee law – Judicial review – Refusal of refugee status – Amendment of grounds – Refusal of subsidiary protection – Whether failure to adequately transpose terms of EU Directive – Refugee Act, 1996 – Immigration Act, 1999 – EU Directive 2004/83/EC – European Communities (Eligibility for Protection) Regulations 2006 SI 518/2006.
Facts The applicant had arrived in the State and had sought refugee status. The applicant had contended that her life was under threat as she had married a Christian man and her parents had tried to force her to marry a Muslim man. Both the Refugee Applications Commissioner and the Tribunal had rejected her claim and an application for subsidiary protection was also refused. The present judicial review proceedings were brought seeking to quash the decision to refuse subsidiary protection and also a declaration that SI 518/2006 failed to properly transpose into domestic law of the provisions of EU Directive 2004/83/EEC (the Qualification Directive). It was contended that there had been a failure to provide a mechanism by which the applicant could appeal the refusal of subsidiary protection. It was further submitted that by omitting the requirement to cooperate with an applicant from the provisions of S.I. 518/2006, the respondents had also failed to properly transpose the terms of the Directive.
Held by Cross J in refusing the relief sought: The issue of whether an effective remedy was available had been heard previously and rejected by the High Court in a number of cases. In a subsidiary protection decision, the Minister was obliged to set out the rational and the reasons for his decision and the Minister had done just that. Subsidiary protection was not one of the exceptional cases referred to in Donegan v Dublin City Council (Unreported, Supreme Court, 27/02/12) whereby judicial review was not an effective remedy. The decision maker had found after. examining the country of origin information that there was a functioning police force in Nigeria and that avenues of complaint were open to the applicant. The court refused to allow the amendment sought regarding ‘actors of serious harm’. The applicant had not been subjected to any past serious harm although threats had allegedly been made against her. Even if this argument had been made in time, the court would have held that the applicant would fail on this ground.
JUDGMENT of Mr. Justice Kevin Cross delivered the 20th day of April, 2012
1. By an order of 25 th July, 2011, Cooke J. granted the applicant leave to apply for judicial review in respect of the following reliefs:-
(i) Certiorari by way of an application for judicial review to quash the decision of the first named respondent refusing to grant the applicant subsidiary protection dated 6 th July, 2011.
(ii) A declaration that S.I. 518/2006 fails to properly transpose into domestic law of the provisions of EU Directive 2004/83/EEC.
(iii) A declaration that the consideration of the applicant's claim was not carried out in accordance with the provisions of EU Directive 2004/83/EC of 24 th April, 2004 and/or S.I. 518/2006.
(iv) A declaration that the unavailability of an effective remedy by which the impugned decision may be appealed renders the decision invalid.
(v) Further or other relief as to this Honourable Court shall de-meet.
(vi) An order providing for an award of costs of these proceedings to the applicant.
2. The grounds allowed, to summarise were:-
(i) The decision of the first named respondent dated 14 th April, 2011 was not in accordance with the procedures mandated by EU Directive 2004/83/EC (the Qualification Directive) in particular and without prejudice Article 4.1 of the Qualification Directive provides:-
"Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application." (Emphasis added)
It was contended that Article 4.1 had not been properly transposed into domestic law as there was no reference to the requirement of cooperation.
(ii) The failure of the first named respondent to cooperate with the respondent in assessing the relevant claim where the breach or the minimum standards mandated by the terms of the Qualification Directive.
(iii) By omitting the requirement to cooperate with an applicant from the provisions of S.I. 518/2006, the respondents have failed to properly transpose the terms of the Qualification Directive into domestic law.
(iv) The failure to provide an effective remedy in accordance with the Constitution and/or Article 3 of the European Convention and/or Article 47 of the Charter of Fundamental Rights renders the decision to refuse subsidiary protection or the purported finality of this decision invalid.
(v) The failure to provide a mechanism by which the applicant can appeal the refusal of subsidiary protection in breach of the principle equivalence in that subsidiary protection which is based on EU law is subject to the rules which are less favourable those applied in national law to similar decisions in particular the applicant's asylum claim.
3. The applicant claims to be a Nigerian national who arrived in the State and sought refugee status on 21 st March, 2006. She claims that she was seeking asylum on the basis that she would be forced into marriage if returned to Nigeria. She was pregnant at the time of her entry into the State and she claimed that her parents had tried to force her to marry a 65 year old Muslim man though she is a Christian and that following the threat of a forced marriage, she had married a Christian man and that her life was under threat when the 65 year old man became aware of the existence of the marriage.
4. The ORAC concluded the applicant had not presented any indication that she was in need of international protection. The applicant initially sought to challenge the decision by the ORAC by judicial review which was refused by Feeney J. on 7 th December, 2007. The applicant also files a notice of appeal to the Refugee Appeals Tribunal (RAT). The RAT had an oral hearing on 14 th August, 2008 and in its decision of 16 th September, 2008, held against the applicant by affirming the ORAC decision and also making credibility findings against the applicant.
5. By letter of 4 th November, 2008, the applicant applied for subsidiary protection and for leave to remain within the State and resubmitted an application on 19 th October, 2009 as the previous application was incomplete.
6. This application for subsidiary protection was considered on 5 th July, 2011 and determined on 6 th July, 2011 and the applicant was notified by letter dated 7 th July, 2011.
7. The within judicial review proceedings challenging the decision were filed on 15 th July, 2011 and on 25 th July, 2011, Cooke J. heard the application for leave ex parte and granted leave in respect of the above grounds.
8. Accordingly, the above grounds and one further matter of importance fell to be considered by this Court.
9. The matter of further importance will be discussed below.
10. Grounds 1, 2 and 3 in which leave was granted in relation to the alleged failure to properly transpose or to properly apply the provisions of Article 4.1 of the Qualification Directive by reason of the alleged failure to cooperate have been considered and rejected in a large number of cases in this Court.
11. In particular, F.N. v....
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