Ireland - High Court, 23 January 2013, M.M. v Minister for Justice and Law Reform & Ors. [2013] IEHC 9

Country of Decision:
Country of Applicant:
Date of Decision:
23-01-2013
Citation:
[2013] IEHC 9
Additional Citation:
No. 8 J.R./2011
Court Name:
High Court (Hogan J)
National / Other Legislative Provisions:
TFEU - Art 267
Ireland - Refugee Act 1996 - Section 13(6)(c)
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 5(1)(b)
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Headnote: 

This case concerned the appropriate interpretation to be given to the determination of the Court of Justice in Case C-277/2012, M.M. v. Minister for Justice, Equality and Law Reform in answer to the questions posed by the High Court of Ireland pursuant to Article 267 TFEU.

The Court of Justice answered in the negative the question posed that the duty to cooperate required the decision maker to supply the Applicant with a draft of any possible adverse decision for comment prior to its formal adoption.

However, the Court of Justice also considered the Irish system for protection decision making more broadly and concluded that it was unlawful not to allow for a further hearing of the Applicant in the course of examination of the subsidiary protection application – following the conclusion of a negative decision on an asylum claim.

The High Court held that the appropriate interpretation to be given to the judgment in this regard was that, in order for a hearing to be effective, it would at a minimum, involve a procedure whereby the Applicant was invited to comment on any adverse credibility findings made at the asylum stage; a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and a completely fresh assessment of the Applicant's credibility in circumstances where the mere fact that the asylum decision maker had ruled adversely on this question would not in itself suffice or be directly relevant to this fresh credibility assessment.

The Court opined that the finding of the Court of Justice did not suggest that an oral hearing would be routinely required at subsidiary protection stage, but considered it unnecessary at that juncture to conclusively determine the issue.

Facts: 

The Irish system for subsidiary protection is open to failed asylum seekers only. Asylum cases are first decided by the Office of the Refugee Applications Commissioner (ORAC) with an appeal to the Refugee Appeal Tribunal (RAT), the application for subsidiary protection is made to the Minister for Justice, Defence and Equality. See Country Overview.

This Applicant had the benefit of a personal interview before the ORAC, the appeal before the RAT was in writing only, and because a personal interview did not form part of the subsidiary protection procedure for any applicants, there was no further interview for subsidiary protection.

The issue in the proceedings was the extent to which the Minister is obliged to give an applicant a separate opportunity to be heard in respect of the subsidiary protection application in view of the decision of the Court of Justice of 22nd November, 2012, in Case C-277/2012, M.M. v. Minister for Justice, Equality and Law Reform, which was referred pursuant to Article 267 TFEU by the same Court in this case.

In the earlier case, the Applicant complained about the use of country of origin reports by the decision maker that were not disclosed to the Applicant, and the Court found that there was no breach of fair procedures because the Minister, by reference to Article 4(3)(b)(ii) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), is entitled to rely on information generally in the public domain, being as it is, "such other information relevant to the application as is within the Minister's knowledge."

The Applicant also argued that the second sentence of Article 4(1) of the Qualification Directive ("In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application") imposed a duty on the Minister to supply an applicant with a copy of any draft decision adverse to the applicant for comments prior to its adoption. Previous decisions of the Irish High Court held against this proposition but it was decided to make a reference to the Court of Justice in light of certain comments of the Dutch Council of State which seemed to support the Applicant's case in a judgment delivered in July, 2007 and which were brought to the Court’s attention in this case.

The Court of Justice went beyond the question originally asked and also considered whether it was unlawful not to allow for a further hearing of the Applicant in the course of examination of the subsidiary protection application, and this is how the issue came before this Court at this juncture.

Decision & Reasoning: 

It was clear to the High Court that the Court of Justice rejected the argument that the duty to cooperate required the decision maker to supply the Applicant with a draft of any possible adverse decision for comment prior to its formal adoption.

However, in the second part of the Court of Justice's judgment from paragraphs 75-95, the Court of Justice held that it was unlawful not to hold “a further hearing” in the course of examination of the subsidiary protection application. The High Court considered what was meant by the words "a further hearing" and concluded from the context - and in particular that it could not have been overlooked that a written application procedure was afforded to the Applicant - that what was being referred to by the Court of Justice was an oral hearing.

The High Court considered that the judgment of the Court of Justice when read in its totality could not however, be interpreted as meaning that an oral hearing would be routinely required at subsidiary protection stage, although it did not conclusively decide that issue.

The High Court held in light of the decision of the Court of Justice that the Minister failed to afford the Applicant an effective hearing at subsidiary protection stage, because he relied completely on the adverse credibility findings which had been made by the asylum decision maker and because he made no independent and separate adjudication on these claims.

It was held that the appropriate interpretation to be given to the judgment was that in order for the hearing to be effective, it would at a minimum involve a procedure whereby the Applicant was invited to comment on any adverse credibility findings made at the asylum stage; a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection; and a completely fresh assessment of the Applicant's credibility in circumstances where the mere fact that the asylum decision maker had ruled adversely on this question would not in itself suffice or be directly relevant to this fresh credibility assessment.

Outcome: 

Relief granted: the Minister’s refusal of the application for subsidiary protection was quashed.

Case Law Cited: 

CJEU - C-435/97, World Wide Fund v. Autonome Provinz Bozen

Ireland - High Court, O.J. ( aka ‘Jayeola’) v Minister for Justice and Equality, High Court & Anor. [2012] IEHC 71

Ireland - High Court, N.O. (aka ‘Oziegbe’) v Minister for Justice and Equality & Ors. [2011] IEHC 472

Ireland - High Court, M.M. v Minister for Justice, Equality and Law Reform & Ors. (No.2) [2011] IEHC 346

Ireland - Supreme Court, Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49

Ireland - High Court, Dbisi v Minister for Justice (Unreported, High Court, Cooke J), 2 February 2012

CJEU - C-27/09 French Republic v People's Mojahedin Organization of Iran

CJEU - C-17/74 Transocean Marine Paint Association v Commission of the European Communities

Ireland - Ahmed v. Minister for Justice, Equality and Law Reform, (Unreported), High Court, Birmingham J. 24 March 2011