Judgment Title: A. -v- MJELR
Composition of Court:
Judgment by: Clark J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 436
THE HIGH COURT
2006 344 JR
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
1. This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform (“the Minister”), dated the 23rd March, 2006, to refuse to consent to the re-admission of the applicant to the asylum process pursuant to s. 17(7) of the Refugee Act 1996, as amended. The applicant is seeking inter alia an order of certiorari quashing that decision. Leave was granted by Birmingham J. on the 4th June, 2008. Although the leave was granted on four grounds the primary ground with which this judgment is concerned is:-
Section 17(7) of the Refugee Act 1996
6. The Minister refused to grant the applicant a declaration of refugee status and in September, 2005 informed the applicant that he was proposing to deport him. The applicant engaged a firm of private solicitors who made representations to the Minister on his behalf as to why he should be permitted to remain in the State. At that point, it was disclosed that he had been diagnosed as being HIV positive in December, 2004, just days before his s. 11 interview with ORAC. The applicant claims that after his oral hearing in March, 2005 he furnished the Tribunal Member with a letter from Beaumont Hospital confirming his HIV status. This is disputed by the respondents. A number of medical reports was furnished confirming the diagnosis. The Minister’s agents examined the applicant’s file pursuant to s. 3 of the Immigration Act 1999 and s. 5 of the Refugee Act 1996. It was determined that the humanitarian grounds on file were not such as to conclude that he should not be returned to Nigeria and that no issues arose in relation to refoulement. The file was re-examined after the applicant’s solicitors submitted two further medical reports but the same conclusion was reached and the applicant was informed in February, 2006 that the Minister had signed a deportation order. The applicant has been refused leave to challenge that decision by way of judicial review.
7. The applicant engaged a further firm of private solicitors and on the 16th March, 2008 they made an application under s. 17(7) of the Act of 1996, seeking the Minister’s consent to make a further application for a declaration of refugee status on his behalf. While additional materials were furnished in relation to his original claim, the primary basis for the s. 17(7) application was as follows:-
The Imputed Decision
11. The applicant’s solicitors subsequently requested the Minister to revoke the applicant’s deportation order pursuant to s. 3(11) of the Immigration Act 1999, making essentially the same submissions as they had made in support of the s. 17(7) application. The Minister refused that application and the applicant was refused leave to challenge that decision by way of judicial review.
14. Mr Woolfson accepted that the Minister was entitled to have regard to the question of whether or not the applicant could, with due diligence, have brought forward the evidence he relies on at an earlier stage. He argued vigorously however that it was incumbent upon the Minister to balance that fact with the broader interests of justice and the wider implications of refusing to allow the applicant to make a further asylum application. In failing to do so, the Minister failed to apply the requisite fairness of decision-making.
15. Ms Harnett-O’Connor B.L., counsel for the respondents, argued that the Minister has an absolute discretion under s. 17(7) and that, on the basis of the syntax and grammar of the Onibiyo “acid test”, the Minister was entitled to refuse his consent once he reasonably determined that the applicant could reasonably have been expected to rely on the evidence during his first asylum application. The Minister had no obligation to give any further consideration to the evidence relied on by the applicant.
The Court’s Assessment
18. I do not believe that it was sufficient for the Minister to consider only the applicant’s failure to assert his fear of persecution by reason of his HIV status during his first asylum claim. It is difficult to see how with this confined consideration the Minister could have been satisfied that the possibility of refoulement could not occur unless some consideration of the substance of the claim had also taken place. In circumstances where it is determined that the Minister’s examination was inadequate, the question for the Court is what test (if any) he ought to have applied?
19. The applicant contends that the Minister was obliged to employ the formula used in the Onibiyo “acid test” and consider whether the applicant’s new claim was sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim. In this regard he relies on the decision of Clarke J. in E.M.S. and McGovern J. in C.O.I. and K.C.C. (cited at paragraph 0 above).
20. I believe that the applicant is correct in part. In examining whether the Minister is obliged to apply the Onibiyo “acid test” when assessing s. 17(7) applications it is important to examine the facts of Onibiyo and to some extent compare the situation which prevailed in the UK at that time with the statutory right to apply for the Minister’s consent as provided for in s. 17(7) in this jurisdiction. The applicant Mr. Onibiyo applied for asylum which was rejected and his appeal from that decision was unsuccessful. He later attempted to make a fresh application for asylum, based on what he submitted were different grounds. The Secretary of State concluded that no fresh claim had been made and treated the further material as relating to the original claim. The applicant sought to appeal that decision but the Secretary of State indicated that since he had made no fresh decision, the applicant had no avenue of appeal available to him. Mr. Onibiyo brought judicial review proceedings which were dismissed in the High Court on the basis that no more than one claim for asylum could be made during one single, uninterrupted stay in the UK. It is significant that there was at that time no statutory provision allowing for the making of a second or further asylum application in the UK. The High Court found for the Secretary of State but the applicant appealed to the Court of Appeal where Bingham M.R. had regard to the obligations of the UK under Article 33 of the Geneva Convention (the prohibition of refoulement), which he said is binding until the moment of return. On that basis he found that a person may make more than one application for asylum during a single uninterrupted stay in the UK.
21. Bingham M.R.. was then faced with the question of what in fact constitutes a “fresh claim” for asylum following an earlier refusal. It is of importance that it was accepted by the applicant in Onibiyo that a “fresh claim” for asylum could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. It was also acknowledged by counsel on behalf of Mr. Onibiyo that there had to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. It does not appear to have been in dispute that if the “fresh claim” depended on new evidence, then it had to satisfy tests analogous to that formulated by the English Court of Appeal in Ladd v. Marshall  1 WLR 1489, which Bingham M.R. summarised as being “previous unavailability, significance and credibility”. Bingham M.R. also noted that in the Court of Appeal’s decision in Manvinder Singh v. Secretary of State for the Home Department  EWCA Civ 53, Stuart-Smith L.J. held that it is only where an applicant asserts that one or more of the fundamental ingredients of his claim is different from his earlier claim that it can be said to be a “fresh” claim. Stuart-Smith L.J. held that in deciding whether or not a fresh claim to asylum is made, “it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed”. Bingham M.R. followed this reasoning and also that of Carnworth J. in the High Court in Singh who held that there must be a change in the character of the application. Bingham M.R. then went on to formulate his “acid test”, as seen at paragraph 0 above.
22. The first point to be made about Onibiyo is that it is clear that Bingham M.R. did not intend to introduce a rigid test where his words would be applied as an invariable formula. Before formulating his “acid test” he warned that “[t]here is danger in any form of words, which can too easily be regarded as a binding formula.” His decision identified matters relevant to the consideration of what constitutes a “fresh claim” which are not very different from the long respected rules from Ladd v. Marshall. While those same matters are relevant to the Minister’s consideration of a s. 17(7) application, the Minister is not obliged to use any formulation of words in reaching his determination. The Minister enjoys a very wide discretion which is subject only to constitutional justice and his obligations under international agreements such as those incorporated into the Refugee Act 1996. That discretion cannot logically be constrained by his choice of words or phrases used in his decision on an application for consent to make a further application for a declaration of refugee status. A decision of the Minister should not be set aside simply because a different set of words were used.
23. The second point that must be made about Onibiyo is that Bingham M.R. clearly found that the existence of a “fresh claim” falls to be determined by the Secretary of State whose administrative decision is reviewable by the courts only on the ground of unreasonableness or irrationality. At the time of the Onibiyo decision the UK Human Rights Act 1998 was not yet in force and so, the Wednesbury principles applied. The more rigorous standard of “anxious scrutiny” is now applicable in the UK.. The underlying principle is applicable to the situation in Ireland. Section 17 (7) of the Refugee Act 1996 sets down that it is for the Minister to determine whether to permit an applicant to make a further application for a declaration of refugee status. Of logical consequence, it follows from the terms of the Refugee Act 1996 that it is for the statutory authorities –ORAC and on appeal the RAT – to determine whether the applicant is a refugee. The determination of whether consent should be granted is a matter for the Minister and not for this Court judicially reviewing the Minister’s decision. The judicial review court may not substitute its view for that of the Minister and can only review the legality, propriety, rationality and constitutionality of the Minister’s decision.
24. The third and most important point in relation to Onibiyo is that Bingham M.R. identified the UK’s obligations under the Geneva Convention which are identical to Ireland’s obligations even though the Convention does not have the force of law in this State. Onibiyo is undoubtedly a helpful case. This was the view taken by Clarke J. in E.M.S. and with which I concur. The “acid test” in Onibiyo does not however impose its language as the test in this State.
25. The law in this state is that the Refugee Act 1996 ought to be construed, as far as possible, to ensure that Ireland complies with its obligations under the Geneva Convention and, in particular, Article 33 of that instrument. To ensure that no person is returned to the frontiers of a state in which his or her life or freedom is at risk, in breach of the overriding prohibition of refoulement set out in s. 5 of the Act of 1996, the Minister must first consider whether the information on which the s. 17(7) application is grounded has already been fully considered whether by ORAC, the RAT or the Minister. If the Minister is satisfied that the information on which the s. 17(7) application has raised no genuinely new facts that have not previously been fully considered, then he can be satisfied that there is no risk of refoulement and he has fulfilled his obligations. If, however, the Minister is not satisfied that the information grounding the s. 17(7) application has already been fully considered, he must go on to consider whether the there is any substance in that new information. If he concludes that there is substance in the new information, he should refer the matter for investigation by ORAC. He is not obliged to employ any particular formula of words in coming to his decision on the substance of the information but he must be satisfied that the information admits of no risk of the applicant being refouled if the applicant is not permitted to make a further asylum application.
26. The Court is aware of the potential for a failed asylum seeker to abuse the s. 17(7) process for spurious reasons (as appears to have occurred in the Onibiyo case) so as to unjustifiably prolong his stay in the State. It is in the common interest that evidence is presented at the first instance. That common interest is served by legal certainty and the finality of decisions which come at the end of a properly conducted asylum and immigration process. As the Minister has a wide discretion to grant his consent under s. 17(7), his refusal to consent will be unlawful only where he fails to consider the substance of the information, evidence or documentation that has not previously been fully considered.
Application to This Case
28. When assessing the above matters, the Minister is entitled to consider all the facts surrounding the previous unsuccessful claim. By way of illustration he might have taken into consideration that the applicant in this case only brought his s. 17(7) application after he was advised by a third firm of solicitors who claimed that his previous solicitors “did not advise him that HIV status and / or membership of the particular social group comprising such persons and persecution associated with that group can properly form the basis for the grant of refugee status and has been recognised within refugee law as such.” The Minister could quite correctly have considered this assertion by reference to the dictum of Finlay Geoghegan J. in Muresan v. The Minister for Justice, Equality and Law Reform  2 I.L.R.M. 364 in the context of an application for an extension of time under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 where she held:-
30. It is important however that while the Minister was entitled to take all these factors into account, the Court agrees with the view expressed by Bingham M.R. that:-