SJ v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 10 October 2017
• Neutral Citation: [2017] IEHC 591
• Docket Number: [2015 No. 644 JR]
• Court: High Court
• Date: 10 October 2017

[2017] IEHC 591

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2015 No. 644 JR]

BETWEEN

S.J.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

ATTORNEY GENERAL

IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – S. 17 of the Refugee Status Act 1996 – Re-admission to asylum process – European Communities (Eligibility for Protection) Regulations 2006 – Assessment of credibility statement – Refusal to subsidiary protection.

Facts: The applicant sought an order of certiorari against the decision of the first respondent for refusing the applicant's second application for subsidiary protection. The applicant contended that the first respondent did not give independent reasons for its refusal and had relied on the adverse credibility findings made by the previous decision-maker namely, the Refugee Appeals Tribunal. The key issue arose as to whether the applicant had an entitlement to have the same credibility issue assessed twice separately. The applicant argued that the first respondent had failed to afford the applicant an effective hearing at the subsidiary protection state in contravention of the judgment of the Court of Justice of the European Union ('CJEU') in M.M. v Minister for Justice Case C-277/11.

Mr. Justice David Keane refused the applicant's application. The Court held that the right to a fair hearing required that an applicant's claim should have been examined distinctly under two separate procedures prescribed to assess his claim. The Court, however, held that it did not imply that the subsequent examiner/first respondent was precluded from placing reliance on the credibility assessment made by the previous decision-maker unless some new elements were introduced or it was shown that the decision of the previous decision-maker was tainted with fundamental flaw. The Court expressed its disagreement over the use of the word 'bifurcated' by the CJEU in Case C-277/11 for the Irish asylum process. The Court opined that the Irish asylum process prescribed linear system with three possible destinations namely, refugee status, subsidiary protection or refusal of either form of international protection.

JUDGMENT of Mr Justice David Keane delivered on the 10th October 2017.

Introduction

1 This is the judicial review of a decision by the Minister for Justice and Equality ("the Minister"), dated 30 September 2015 ("the decision"), to uphold a decision of 1 May of that year to refuse the applicant, a person already refused a declaration that she is entitled to subsidiary protection, the consent statutorily necessary to enable her to make a second application for such a declaration.

2 The central question it presents is whether an applicant for international protection, who seeks to rely on the credibility of the same statement (or statements) for the purposes of both a refugee status application under the Refugee Status Act 1996, as amended ("the 1996 Act"), and a subsidiary protection application under the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Protection Regulations"), has an unqualified entitlement to have the same credibility issue assessed twice completely separately, once in the course of each procedure.

Background

3 The applicant is a national of Georgia. She arrived in the State on 14 December 2006 and applied for asylum four days later.

4 On 23 March 2007, the Office of the Refugee Applications Commissioner ("the Commissioner") recommended that the applicant be refused refugee status on the basis that it was not evident that she had suffered persecution in Georgia related to a convention ground, or that she would suffer persecution if returned to that country. That decision was communicated to the applicant on 27 March 2007.

5 The applicant appealed to the Refugee Appeals Tribunal ("the RAT"), now the International Protection Appeals Tribunal ("the IPAT"). In a decision dated 19 September 2007, the RAT affirmed the recommendation of the Commissioner.

6 Although the relevant materials have not been exhibited, it appears that, on or about 20 November 2007, the applicant applied for a declaration of entitlement to subsidiary protection and leave to remain in the State. The Minister refused that application in a decision given on or about the 31 January 2011 or 1 February 2011. The applicant did not challenge that decision.

7 The Minister made a deportation order against the applicant on 7 February 2011. By letter dated 19 November 2013, the applicant's solicitor sought the revocation of that order and the reconsideration of the applicant's claim for subsidiary protection. The applicant's solicitor wrote again on 8 May 2014, making further submissions in support of that request. But, on 8 September 2014, the applicant was arrested and detained on foot of the deportation order, prompting the issue of legal proceedings on her behalf later that same day. I have not had sight of the papers in those proceedings, which I have been told were compromised between the parties and struck out on 22 February 2015.

8 It seems that, as a term of that compromise, the Minister agreed to consider the letter of 19 November 2013 as an application for the Minister's consent to a further (second) application for subsidiary protection by the applicant, pursuant to the provisions of s. 17, subs. (7) to (7H) of the 1996 Act, as amended by the European Communities ( Asylum Procedures) Regulations 2011 and the European Union (Subsidiary Protection) Regulations 2013.

9 On 2 April 2015, the applicant's solicitor wrote to the Minister making additional submissions in support of that application.

10 Under cover of a letter dated 14 May 2015, the applicant received a copy of a recommendation dated 1 May 2015, adopted on behalf of the Minister on 14 May 2015, that the Minister's consent to a second application for subsidiary protection be refused. The cover letter informed the applicant of her entitlement to request a review of that decision. By letter dated 1 September 2015, the applicant's solicitor made such a request, together with a further submission in support of it.

11 In a review dated 30 September 2015, a deciding officer on the Minister's behalf upheld the decision to refuse the Minister's consent to a second application for subsidiary protection. That is the decision now under challenge. The applicant received notification of it on 7 October 2015.

Procedural history

12 The application is based on a statement of grounds dated 18 November 2015, grounded on an affidavit sworn by the applicant on the same date.

13 On 19 November 2015, the applicant sought ex parte, and was granted, an interim injunction restraining her deportation from the State.

14 On 15 February 2016, the applicant sought and obtained, ex parte, an Order granting her both leave to seek judicial review of the Minister's decision and an extension of time to that date for that purpose. The Order also granted the applicant leave to amend her statement of grounds in terms that it recites were scheduled to it. But the copy of the Order produced at the hearing contains no schedule. An amended statement of grounds was delivered the following day. While the amendments it contains are not marked, they can be discerned from a comparison of the two documents.

15 The Order of 15 February 2016 also continued, for a specified period, the interim injunction restraining the applicant's deportation. Whether that injunction has continued in force since then, as the applicant suggests, or has been replaced by the Minister's undertaking not to enforce the deportation order pending the resolution of these proceedings, as the Minister asserts, is not clear from the papers furnished to the Court. Fortunately, nothing turns on the point for present purposes.

16 The Minister delivered a statement of opposition dated 7 November 2016. It is accompanied by an affidavit of verification, sworn on 4 November 2016 by a higher executive officer in the Ministerial Decisions Unit of the Department of Justice. The substance of that affidavit is limited to a description of the administrative process by which applications for the Minister's consent under s. 17 (7) of the 1996 Act, as amended, are generally considered.

The grounds of challenge

17 On three separate grounds, the applicant impugns the decision challenged as one captured by the test for unreasonableness, most recently restated by the Supreme Court in Meadows v Minister for Justice [2010] 2 IR 701.

18 The first is that it was irrational or unreasonable of the Minister to conclude that that the original decision to refuse consent to a further application for subsidiary protection had been reached in compliance with the requirements of s. 17 of the 1996 Act, as amended, or that it was a reasoned or lawful one.

19 The second ground is that the Minister applied the wrong test both in making the original decision to refuse consent and in reviewing that decision, by having regard to the provisions of s. 17 of the 1996 Act, as amended, and, in particular, the requirements of s. 17 (7E), thereby disregarding an undertaking that the Minister had given to the applicant as part of the compromise of the earlier judicial review proceedings to consider her application under s. 17 on some other, agreed basis.

20 The third ground is that, as part of the review, the Minister wrongly placed reliance on the adverse finding of the RAT concerning the credibility of the evidence given by the applicant in support of her refugee status application.

The arguments

21 The applicant's central argument can be shortly summarised in three propositions.

22 The first is that the Minister failed to afford the applicant an effective hearing at the subsidiary protection stage of the international protection process, because the Minister relied completely on the adverse credibility findings of the RAT and made...