Ireland - High Court, 28 October 2011, L.H. v Minister for Justice [2011] IEHC 406

Country of Decision:
Country of Applicant:
Date of Decision:
28-10-2011
Citation:
[2011] IEHC 406
Additional Citation:
2008 No. 1183 J.R.; [2011] 3 I.R. 700
Court Name:
High Court (Cooke J.)
National / Other Legislative Provisions:
Ireland - European Communities (Asylum Procedures) Regulations 2011 (SI No.51 of 2011)
Ireland - Refugee Act 1996 - Section 5
Ireland - Refugee Act 1996 - Section 17(7)(a)
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Headnote: 

The applicant applied to the Minister to be readmitted to the asylum system many years after he had made a first application for refugee status which had been refused for non-attendance at a refugee interview. There was no new claim as such nor was there any new evidence to support the application. The Court found that the Minister was only required to decide whether what was adduced was ‘new’. The Minister’s obligation was not altered by the fact that the original application had not been fully processed but had been abandoned by the applicant and deemed withdrawn. An applicant is not entitled to exploit his own failure to prosecute his original application in order to compel the Minister to consent to what is, in effect a reopening of the original claim with no new evidence, argument elements or findings. The Court also found that Art 32 of the Procedures Directive did not assist the applicant and, in any event, there was no claim of ‘direct effect’ made on his behalf.

Facts: 

The applicant in this case was a national of Georgia who arrived in the State on the 29th January, 2001, and applied for a declaration of refugee status. He twice failed to attend at a refugee application interview and, as there was no reason provided for non-attendance, the Refugee Applications Commissioner recommended to the Minister that he should not be declared to be a refugee. In accordance with section 11(11) of the Refugee Act 1996, (as amended) the application was deemed to have been withdrawn for failure to attend the interviews. The applicant was formally notified that the Minister had refused the application in June of 2002. The letter also notified the applicant that the Minister was proposing to make a deportation order. No humanitarian representations were received and a deportation order was subsequently made against the applicant in September of 2002. Nothing further was known as to the whereabouts of the applicant until he was apprehended and detained in September of 2008, following a visit he made to the offices of the Commissioner apparently enquiring about what had happened to his asylum application. An application was then made to the Minister seeking permission to make another application for asylum pursuant to section 17(7)of the Refugee Act, 1996. There was no new or different claim made as such and there was no new or different information submitted to support the claim (which was that the applicant faced persecution in Georgia by reason of his Chechen roots). It was however submitted that the applicant had moved address due to ill health back in 2002 and had not received any of the notifications regarding interviews or the deportation order.

The section 17(7) application was refused in October of 2008 on the basis that there was “no new convincing evidence.”

When the case finally came on for hearing in 2011, the applicant argued that the fundamental obligation of the Minister under the Geneva Convention, under the Refugee Act, 1996, and in compliance with the standards required by the Procedures Directive is to ensure that an application for asylum is fully investigated, assessed and determined. Because the original application in this case was deemed withdrawn, there was no such investigation or assessment and the Minister was accordingly obliged to give his consent to the application being made even if it is 6 years after the date of the original claim. The applicant also argued that the Minister applied a wrong test in basing his refusal on the fact that “no new convincing evidence” had been supplied which could lead to a favourable view being taken of the asylum claim. There is no such criterion or condition in section 17(7) and the scope of that provision must be capable of extending to cases where the claim proposed to be made is identical, but was never in fact investigated previously. 

Decision & Reasoning: 

The Court (Cooke J.) found that the applicant’s central argument as summarised above did not raise any substantial ground as the validity of the Minister’s refusal of consent. The application letter of 9 October 2008 advanced no new evidence that would indicate that a favourable view of the further application might be taken if remitted to the Commissioner for assessment. There was no new claim nor was there any new evidence. Whether the issue is approached on the basis of the two-limb “acid test” of the EMS case, on the allegedly one limb test of the AA case, or on the basis that the test of the Procedures Directive was applicable from 1 December 2007, the Minister was only required to decide whether what was adduced was new. The Minister’s obligation was not altered by the fact that the original application had not been fully processed but had been abandoned by the applicant and deemed withdrawn. An applicant is not entitled to exploit his own failure to prosecute his original application in order to compel the Minister to consent to what is, in effect a reopening of the original claim with no new evidence, argument elements or findings.

The Court added that this was not a case in which the applicant attempted to rely on the direct effect of that directive as against the State nor could the respondent (the Minister) have invoked the terms of its Art 32 as against the applicant when the provisions had not been transposed by the State when the decision to refuse consent was made in October 2008.

Outcome: 

Leave for judicial review refused.

Observations/Comments: 

The amendments to section 17 of the Refugee Act, 1996 in the 2011 Regulations were introduced in order to make good a series of deficiencies in the transposition of the Procedures Directive identified by the European Commission which led to the judgment of the CJEU of 4th April, 2011, in Case C-431/10 Commission v. Ireland [2011] E.C.R. 1-000. The amendments comprise the substitution of the word “subsequent” application for “further” application in subs. (7) followed by the addition of new subsections (7A) to (7H). They are concerned with giving effect to the minimum standard for procedures for dealing with a second or later application for asylum in the same Member State by the same applicant and give effect principally to the provisions contained in Art 19, 20, and 32 of the Procedures Directive.