IEHC 62 · High Court

Neutral Citation 2012 [IEHC] 62

THE HIGH COURT

JUDICIAL REVIEW

[2011 No.95 J.R.]

BETWEEN

V. N. [Cameroon]

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered the 16th day of February 2012

1. By a judgment and order of the 17th November, 2011, the applicant was granted leave by Dunne J. to apply for judicial review of a

decision of the first named respondent made on the 11th January, 2011, determining that the applicant was not eligible for subsidiary

protection under the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Regulations") and of the

deportation order made in respect of the applicant on the 13th January, 2011.

2. Leave was granted on the basis of a single ground as follows:-

"The ground upon which the said reliefs are sought is that the applicant has a right of appeal against the determination

that he is not eligible for subsidiary protection and that the respondent cannot therefore reach a lawful decision to deport

the applicant until that appeal has been determined. The applicant's right of appeal against that determination arises

because he had a right of appeal in respect of his refusal of the most approximate domestic entitlement, namely a

recommendation that he be declared to be a refugee in accordance with the Refugee Act 1996, and therefore, by virtue

of the principle of equivalence in European law, he must have a like right of appeal in respect of his refusal of the

European law entitlement of subsidiary protection."

3. In other words, the issue raised in this application is based upon the proposition that a failed asylum seeker who is declared

ineligible for subsidiary protection by determination of the first named respondent is entitled in law to a "right of appeal" against that

decision. In particular, it is asserted that under European Union law such an applicant is entitled to an "effective remedy" against such

a first instance determination and that the principle of equivalence in European Union law requires that the remedy be equivalent to

that available in national law in a procedure prescribed by national law for the protection of a comparable right. Because, it is said,

there is a right to appeal from the first instance determination of a claim for asylum made by the Office of Refugee Applications

Commissioner to the Refugee Appeals Tribunal, that facility for appeal under national law (the Refugee Act996) must be replicated by

a corresponding appeal against a determination made in a procedure as the latter determines a right derived from European Union law,

namely Council Directive 2004/83EC ("the Qualifications Directive").

4. The leave judgment of the 17th November, 2011, was given following a hearing of the leave application which had taken place on

31 May 2011. It appears that in the interval the attention of Dunne J. had not been drawn to the fact that the same issue had been

the subject of several other judgments of the High Court in which the proposition upon which the ground was based had been

rejected as unfounded.

5. These judgments included the judgment of this Court in S.L. (Nigeria) v. MJELR of the 6th October, 2011 and B.J.S.A. (Sierra

Leone) v. MJELR of the 12th October, 2011 ([2011] IEHC 381). It has also been rejected by Birmingham J. in a judgment of the 24th

March, 2011, in M.A.A. v. MJELR. The issue has subsequently been considered again in the judgment of Ryan J. of the 14th December,

2011 (N.O. v. MJELR) and of Hogan J. of the 11th January, 2012 in P.I and E.I v. MJELR. In the judgment of this Court all possible

nuances of the arguments upon which this ground is advanced have been thoroughly considered in those judgments and nothing has

been submitted in the hearing of the present application which could justify this Court departing from the conclusions that have been

reached in those judgments.

6. The applicant is an English speaking national of the Cameroon and comes from its North West province which had previously been a

part of the British Cameroons. He arrived in Ireland in July 2006 and claimed asylum. His asylum claim was based upon his account of

having previously suffered persecution for political reasons in his country of origin. He said that, like his father, he had been an active

member of a separatist movement. He joined the Southern Cameroon's Youth League and was involved in campaigning for

independence. He claimed his house had been raided on a number of occasions by police looking for documents held by his father. In

January 2000, he had been arrested and held in prison for five years without charge. He claimed to have been mistreated in jail.

7. His asylum application was the subject of a negative recommendation by the Commissioner in September 2006 and this was upheld

on appeal by the Tribunal by a decision on the 1st February, 2008. In essence, the applicant's claim was rejected upon grounds of

lack of credibility as to his account of political involvement and resulting mistreatment.

8. On the 25th April, 2008, an application for subsidiary protection was made on the applicant's behalf. The claim to fear exposure to

a risk of serious harm if returned was based upon precisely the same facts, events and claims of mistreatment as had been the

subject of the asylum application at both stages. In the application submissions were made by way of reply to, and rebuttal of, some

of the findings of a lack of credibility made by the decision makers in the asylum process. In the determination of the application

under the heading of Applicant's credibility and whether benefit of doubt should be given", (by reference to Regulation 5(3) of the

2006 Regulations) these submissions were noted and the following observation was made:-

"In their submissions, the applicant's legal representative raises a number of points in regard to findings made by the

Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. It is not the purpose of this

determination to investigate findings made by these offices."

The decision maker then went on to quote a number of specific credibility findings made by the Tribunal and then concluded that

because of the doubt surrounding credibility "the applicant does not warrant the benefit of the doubt".

9. This aspect of the determination and the submissions made in the application has been pointed to as demonstrating the reason

why an appeal against such a determination is necessary. It is said that the Minister has simply accepted negative credibility findings

made in the asylum process and has not made his own independent determination of the issue. In the judgment of the Court, this

argument is unfounded because it fails to appreciate the relationship between subsidiary protection and refugee status as established

in the scheme of international protection in the Common Asylum System of the European Union. Subsidiary protection is a form of

international protection introduced by the Qualifications Directive for the explicit purpose of complementing refugee status under the

Geneva Convention. As explained in greater detail in a judgment of this Court delivered since the hearing of the present application

(N.D. v MJLR of the 2nd February, 2012) the scheme for the assessment of an entitlement to international protection within the

European Union is based upon a procedure in which the essential fact finding and evaluation of an applicant's claim is made by means

of interview, report, first instance determination and possible appeal in the asylum procedure. In all Member States except this one, a

single application is made both for refugee status and subsidiary protection and, where the asylum claim is rejected, the same

decision maker will immediately assess eligibility for subsidiary protection on the basis of the facts and circumstances of the claim as

established at that point.

10. Although, in the manner in which subsidiary protection has been implemented in the 2006 Regulations in this Member State, a new

application is made and examined after a proposal to deport has been notified, the first named respondent as decision maker remains

obliged to take account of the findings on credibility made in the asylum process because an application for subsidiary protection can

only be made by an applicant who has been declared not to be a refugee. (See B.J.S.A. (Sierra Leone) v. MJELR)

11. Furthermore, the proposition that the Minister is obliged to reconsider issues of credibility where the application for asylum is

based on precisely the same facts, events and claims as were rejected by the asylum decision makers, leads to a clearly

contradictory result. Where, as in the present case, the claim for asylum was based upon a fear of persecution for a particular

Convention reason and has been rejected because its factual basis has been disbelieved, the invitation to the Minister to reconsider

credibility would effectively require the Minister to consider whether the applicant was a refugee when his not being a refugee is an

essential precondition of possible eligibility for subsidiary protection.

12. In the course of argument the Court pointed out to counsel for the applicant that so far as European Union Law is concerned,

both Article 47 of the Charter of Fundamental Rights and Article 39 of the Procedures Directive do not confer a right of appeal in the

sense of a full de novo re-hearing such as the applicant appeared to require. Both of those provisions refer to the "right to an

effective remedy before a tribunal". In circumstances where an applicant will always have been interviewed by the Commissioner and

will invariably have had an oral hearing by way of full appeal before the Tribunal, there did not appear to be any valid reason why

judicial review of the determination of subsidiary protection would not adequately satisfy any entitlement to an effective remedy as

has been held in a number of judgments of the High Court including, in particular, the judgment of Hogan J. of the 11th January,

2012,referred to above in P.I. and E.I.

13. Counsel for the applicant submitted that the ground advanced was not based upon an entitlement under European law in that

sense, but upon the principle of equivalence and the fact that national law provided a full appeal by way of rehearing before the

Tribunal against the comparable first instance determination under the Act of 1996 of an asylum application. As already indicated

above, the Court considers this argument unfounded for the reasons already set out in greater detail in the judgments referred to in

paragraph 5 above.

14. The essential reasons given in those judgments for the conclusion can be summarised as follows. Firstly, insofar as the possibility

of appealing against the administrative determination of a subsidiary protection application is a matter of national procedural law, the

intervention of European Union Law to prescribe minimum procedural standards in Council Directive 2005/85/EC (the "Procedures

Directive") does not apply to the subsidiary protection form of international protection except in those cases where a Member State

has adopted a single or unified procedure for both forms of international protection as required by Article 3.3 of the Directive in

question.

15. Secondly, the appeal from the ORAC to the RAT under the Act of 1996, is not an appropriate comparator in national law because

prior to 1 December 2007, (the final date for transposition of the Procedures Directive,) the s. 13 Report of ORAC under that Act, was

not a first instance determination of the application for asylum. It was a report upon the examination of the asylum claim and on the

interview of the applicant with a recommendation to the Minister who made the decisive determination under s. 17(1) of the Act.

16. It was only by virtue of the adaptation of the 1996 Act, authorised by Annex I of the Procedures Directive that the s. 13 report

acquired the decisive character of a first instance determination and the appeal to the RAT acquired the function of providing the

effective remedy required by Article 39 of the Procedures Directive which, as mentioned, applies exclusively to applications for asylum

except in the circumstances identified in Article 3.3.

17. It cannot, therefore, be said that for the purpose of applying the principle of equivalence an appeal from a first instance

determination of an asylum application in Irish law is a remedy accorded for the vindication of a comparable right in national law. It is

a procedure which affords the remedy required to be accorded by the European Union in the Procedures Directive as applied to asylum

applications.

18. Thirdly, it is a mistake to treat the consideration of eligibility for subsidiary protection as wholly divorced from the examinations of

the application for subsidiary protection from the first stage examination of the application for refugee status. Subsidiary protection is

explicitly enacted as a form of international protection in European Union law to complement refugee status under the Geneva

Convention. Because an application for subsidiary protection can only be made by an individual who has been declared not to be a

refugee, the scheme of the Qualifications Directive presupposes that when the subsidiary protection decision makers determine the

latter claim, the applicant's case has already, so far as concerns the basic facts, history and personal circumstances of the applicant,

been examined and analysed by the decision makers in the asylum process. While this more obviously the case where the unified

procedure is employed by reason of Article 3.3 it is nevertheless the case that by the time the Minister determines the subsidiary

protection application, the majority of claims will not only have been examined and analysed at first instance, but invariably will have

been the subject of reconsideration at an appeal hearing.

19. The principle of equivalence comes into play where European Union Law creates rights in favour of individuals, but leaves to the

Member States the choices of procedures and remedies for enforcement or protection of those rights. The Member States have an

obligation to provide the appropriate procedures and remedies by national law but subject to the condition that the measures and

procedures chosen must be equivalent to and no less effective than the measures provided by national law for the enforcement or

protection of comparable rights in national law. A declaration of refugee status under the Geneva Convention is not, as such, the

grant of a right in national law. It is declaratory of the pre-existing circumstances of an applicant in international Law coming within

the protection afforded by the Convention (See K.J.J v Refugee Appeals Tribunal (Unreported, High Court, Cooke J. 4th March 2011,

[2011] IEHC 77 and H.I.D. v Refugee Applications Commissioner, (Unreported, High Court, Cooke J. 9th February 2011). Subsidiary

protection is, therefore, an extended form of international protection which complements refugee status by affording protection to an

individual who is genuinely at risk of “serious harm" in the country of origin but who does not qualify as a refugee; invariably because

the source of the serious harm in question lacks one of the essential reasons for persecution upon which the Geneva Convention is

based - the so-called Convention nexus. It is incorrect, therefore, to regard eligibility for subsidiary protection as a wholly distinct and

stand alone right attracting the need for a procedure which duplicates that of the asylum process.

20. In submissions, counsel for the applicant accepted that the Procedures Directive does not apply directly to procedures for

subsidiary protection except where a unified system has been adopted in accordance with Article 3.3. He submitted, however, that

notwithstanding the role of the Minister in making a formal decision on the declaration for refugee status under s. 17(1) of the Act of

1996, in substance and in practice it is the recommendation in the s. 13 Report which constitutes the first instance determination and

the appeal decision of the Tribunal being a "final decision" for the purposes of Article 2(d) of the Procedures Directive. Where a

negative recommendation has been given, the Minister retains a residual discretion nevertheless to grant the declaration. Where the

recommendation is positive, he has no such discretion, but must grant the declaration. The Court entirely agrees that this is the

correct approach that must be taken to the respective roles of the ORAC and the RAT. By not formally implementing the Qualifications

Directive by transposition of its provisions and relying upon the facility to adapt the existing national provisions afforded by Annex I of

the Procedures Directive, the State cannot now assert that the s. 13 Report of ORAC is anything other than the "first instance

determination" and the appeal decision of the Tribunal the "final decision" on the application. Insofar as s. 17(1) retains an executive

function it is as a residual discretion on the part of the Minister which can operate only in favour of an applicant.

21. The Court cannot accept, however, the further submission made on the basis of that approach namely, that "if there is an appeal

against what is in substance the refusal of asylum in a particular country" then the principle of equivalence means that there must be

an appeal against the refusal of the "European law remedy of subsidiary protection". Because the subsidiary protection determination

is a complementary or "follow-on" examination of the circumstances of an applicant in the light of a claim to a risk of serious harm for

a "non-Convention reason" it does not follow, in the judgment of the Court that the principle of equivalence requires that there be a

process of appeal by way of rehearing. Insofar as the determination of the subsidiary protection component of international protection

can be characterised as a new decision by a different decision maker taken in implementation of a provision of European Union law,

what an applicant is entitled to is the "effective remedy" required by Union law generally, including Article 47 of the Charter of

Fundamental Rights of the European Union in particular. As such, the remedy is provided for in Irish law by the availability of judicial

review and, as has been held in a number of judgments of the Court, that remedy is adequate to guarantee the validity,

reasonableness and lawfulness of a determination of subsidiary protection. ( P.M v MJELR (Unreported, High Court, Hogan J. 28th

October 2011) [2011] IEHC 409, ISOF v Minister for Justice (Unreported, High Court, Cooke J. 17th December 2010) [2010) IEHC 457,

and Lofinmakin v Minister for Justice ((Unreported, High Court, Cooke J. 1st February 2011) [2011] IEHC 38)

22. Finally, counsel for the applicant relied in this regard upon the recent judgment of the Court of Justice of the European Union in a

Case 69/10 Diouf given on the 28th July, 2011. This case is relied upon to support the proposition that insofar as the cases cited in

para. 5 above are to be taken as deciding that Article 39 of the Procedures Directive does not apply to subsidiary protection they are

at variance with the ruling of the Court of Justice. It is submitted that in this case the Court of Justice has reaffirmed that the right

to an effective remedy under Article 39 is a reiteration of the fundamental right to such a remedy in European law. Accordingly, even

if Article 39 has not been expressly applied in the Procedures Directive to subsidiary protection determinations as such, the same right

to an effective remedy derived from general law must nevertheless be accorded.

23. The Court has no great difficulty with much of this proposition. It is clear that Article 39 is indeed an embodiment of the general

right now given explicit status under Article 47 of the Charter. Where this Court disagrees with the submission is with the suggestion

that the Diouf case is authority for the proposition that an effective remedy for the purposes of European Union Law necessarily

requires an appeal by way of a de novo rehearing. The Court of Justice did not so decide.

24. The Diouf case arose out of an asylum procedure before the relevant administrative Tribunals in Luxemburg where the application

for asylum had been dealt with under an accelerated procedure in the first instance examination. The decision rejecting the

application was taken by the Minister for Labour, Employment and Immigration. The applicant then brought proceedings before the

Tribunal Administratif seeking annulment of the Minister's decision including annulment of the decision to deal with the application and

determine it under accelerated procedure. Under the relevant Luxemburg law, no appeal lay against such a procedural decision within

the asylum process. It was submitted that the non-existence of such an ability to challenge the accelerated procedure decision was

a denial of an effective remedy required by Article 39. In brief, the Court of Justice held that the decisions in the asylum process to

which Article 39 applied were the substantive decisions which determine the outcome of the asylum application. It held that the

principle of effective judicial protection did not preclude national rules which barred the procedural measures such as the application

of an accelerated procedure provided "that the reasons which led that authority to examine the merits of the application under such a

procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the

application - a matter which falls to be determined by the referring court".

25. In other words, the Court held that it was competent for the authorities in a Member State in the asylum process to choose to

apply an accelerated procedure in a given case and not allow a distinct challenge to be made at that stage to the choice provided

the legality of the ultimate substantive decision taken under that procedure and in particular the reasons for rejecting the asylum

application as unfounded, can be the subject of review by the national Court within the framework of a challenge to the substantive

decision. (See para. 56 of the judgment). In para. 58 the Court said: "What is important, therefore, is that the reasons justifying the

use of an accelerated procedure may be effectively challenged at a later stage before the national court and reviewed by it within

the framework of the action that may be brought against the final decision closing the procedure relating to the application for

asylum".

26. What is notable about the Diouf case is that the action for annulment of the decision rejecting the asylum claim and requiring the

applicant to leave Luxemburg in which the questions were referred to the Court of Justice, was itself a remedy by way of judicial

review before an administrative tribunal. The expression 'judicial review" as it appears in the English text of the judgment at, for

example, para. 57 is rendered in French - the language of the case -as "controle juridictionnel". This is the term used to describe the

exercise by the Court of Justice itself of its jurisdiction in actions for annulment by way of judicial review of the legality of legislative

acts and administrative measures under Article 263 TFEU. It is also the term used to define the annulment jurisdiction in the

administrative law systems of other Member States including notably those of the French and Belgian Conseils d'Etat on which of

course other European systems including that of the Luxembourg courts are based. As such, those courts have competence to review

the legality of the reasons for a substantive decision on the merits but that does not mean that they have power to reach a new

conclusion on the substantive merits of the original application and to substitute their own conclusion as a replacement adjudication

of the application on the merits. They annul and remit. So does this Court in judicial review. Accordingly, while the Court of Justice in

the Diouf case has reiterated as the characteristic of the effective remedy that the tribunal to which the remedy lies must extend to

reviewing the legality of the reasons which l ed to the asylum claim being rejected on the merits, the Court of Justice has not held

that the effective remedy requires the provision of an appeal by way of rehearing on the merits as claimed by the applicant. Thus,

the Diouf case is not, in the judgment of this Court, authority for the central proposition sought to be advanced in support of the

ground for which leave was granted in this case.

27. For all of these reasons the Court considers that the ground has not been made and the application must be refused.

APPROVED: Cooke, J