Ireland - High Court, 2 February 2012, N.D. v Minister for Justice and Law Reform, [2012] IEHC 44

Country of Decision:
Country of Applicant:
Date of Decision:
02-02-2012
Citation:
[2012] IEHC 44
Additional Citation:
2011 No. 129 J.R.
Court Name:
High Court (Cooke J.)
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Headnote: 

Two main issues are addressed by the Court:

Is the Minister required to re-examine a negative credibility finding by the Office of the Refugee Applications Commissioner (ORAC) when such is disputed in the subsidiary protection application but has not been the subject of an appeal determination by the Refugee Appeals Tribunal (RAT) in the refugee status determination procedure?

Does Regulation 4(5) preclude the Minister from taking any steps in the preparation of a deportation order prior to a final determination of the subsidiary protection application?

Both issues are answered by the Court in the negative.

Facts: 

The Applicant is a Nigerian national whose application for refugee status was based on his claim that the deputy governor of a Nigerian state was determined to find and kill him for the murder of the governor’s son, of which the Applicant is innocent. The ORAC rejected his claim as lacking credibility and an appeal to the RAT was lodged but subsequently withdrawn on legal advice as the Applicant could not establish a nexus between the fear of persecution and a protected Convention ground.

An application for subsidiary protection was lodged based on the same facts and rejecting the credibility findings of ORAC. This application was refused and a deportation order was made in respect of the Applicant. The Applicant then applied for leave to seek judicial review quashing the decisions to reject the subsidiary protection application, and the subsequent deportation order.

Decision & Reasoning: 

As the Applicant had withdrawn his appeal against the negative decision of the ORAC, the disputed findings on his lack of credibility were not the subject of re-examination by the RAT. The Applicant thus sought to have the Minister reopen and reconsider those findings in the context of the subsidiary protection application, and invited him to determine the subsidiary protection application on the basis of the explanations then offered as to why the Applicant should have been believed. In the view of the Court, this argument is not well-founded because it fails to “appreciate the essential procedural character of the international process which forms the basis of the common asylum system of the European Union”. The Court held that the Minister is obliged to take into account the findings made in the asylum process in determining the subsidiary protection application because "the process remains... a continuing and coherent examination of the status of the Applicant in international and European Union law." The Court found that there is no obligation on the Minister to decide whether the Applicant should be considered plausible or credible in the light of explanations given in the application for subsidiary protection; at least in the absence of new evidence, information or other basis capable of demonstrating that the original findings were vitiated by material error on the part of the decision makers.

However, the Court did find that the nature of the split system in Ireland may give rise to instances, even if rare, in which an Applicant will seek to rely upon a risk of harm from a source not previously considered in the asylum process and in such cases it will fall to the Minister to assess that claim as it is made. Where this requires an evaluation of credibility, “it may well be that the principle of fair procedures will require the decision-maker to interview the Applicant for that purpose,” and the 2006 Regulations do not preclude this. This does not arise in the present case where, in effect, the Minister was being asked to reconsider the issue of credibility and come to a different conclulsion. Disputes as to findings of fact must be challenged by way of appeal to the RAT.

Referring to O.O. & Anor. v MJELR, the Court rejected arguments by the Applicant that Regulation 4(5) of S.I. 518 of 2006 read in conjunction with Regulations 2 and 3 precludes the Minister from any consideration of the making of a deportation order until after the subsidiary protection application has been definitively determined. The first step in the deportation process has in fact already begun when the Minister notifies the failed asylum seeker that he proposes to make a deportation order in the letter sent under section 3(3)(a) of the Immigration Act 1999, prior even to the submission of the subsidiary protection application. The subsidiary protection application ‘interrupts” the deportation process and, once that application is negatively determined, Regulation 4(5) requires the Minister to resume the consideration of his original proposal to make a deportation order.

Submissions that the determination of the Minister was flawed in that it was ambiguous because it was unclear whether the Minister had proceeded on the basis of accepting the Applicant’s account of events or not, were rejected by the Court “in the light of the express terms of the determination”.

Outcome: 

The application for leave to seek judicial review was dismissed.

Observations/Comments: 

The question of whether the Minister may be obliged to conduct oral interviews for the purposes of subsidiary protection decisions, was subsequently dealt with by the High Court in M.M. v Minister for Justice and Law Reform & Ors. [2013] IEHC 9, which referred Case C-277/2012 to the CJEU. The Court held that if a credibility finding adverse to the applicant was to be made which was separate and distinct from that made during the asylum process, then an interview may be required but it doubted that an interview would be required in all cases.