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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> B.M. -v- Minister for Justice and Equality & ors [2014] IEHC 25 (21 January 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H25.html
Cite as: [2014] IEHC 25
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Judgment Title: B.M. -v- Minister for Justice and Equality & ors Neutral Citation: [2014] IEHC 25 High Court Record Number: 2014 9 JR Date of Delivery: 21/01/2014 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 25 THE HIGH COURT JUDICIAL REVIEW [2014 No. 9 J.R.] BETWEEN B. M. APPLICANT AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 21st day of January 2014 1. This is an ex parte application for leave to seek judicial review of decisions by the first named respondent dated 18th December 2013, refusing to revoke a negative subsidiary protection decision and refusing to permit the applicant to make a further application for subsidiary protection. 2. The applicant is said to be a national of Cameroon. In May 2008 he was refused asylum because central elements of his claim were not believed. His application for subsidiary protection was refused in March 2012 and a Deportation Order issued. By letter of 9th December 2013, the applicant’s solicitors wrote to the Department of Justice and Equality to request revocation of the Deportation Order and of the refusal of subsidiary protection. (The revocation of the Deportation Order is under active consideration by state officials and no complaint is made in respect thereof by the applicant.) 3. The letter of the 9th of December asserts the legal frailty of the subsidiary protection refusal. In addition, complaint is made about certain findings of the Refugee Appeals Tribunal decision dated 20th May 2008. In particular, the applicant submitted in the letter that country of origin information dated 7th February 2013 indicated that certain categories of persons were frequently subject to torture and other maltreatment. The applicant claims to be a member of a group susceptible to such maltreatment and he said that his claim to be such a member has never been determined lawfully. The penultimate paragraph of the applicant’s solicitor’s letter is in the following terms:
The relevant part of the reply from the Department of Justice is as follows:
In relation to your client’s application for subsidiary protection, this has already been determined with the outcome of that application having been notified to your client by letter dated 5th March, 2012. It was open to your client to challenge that determination at that time but he failed to do so, directly or indirectly. As a result, it is somewhat strange that some 21 months later your client would seek to have that determination revisited. We will not be doing so.” 6. Counsel for the applicant initially sought to argue that where the law provided for the possibility of re-entry to the asylum system, it must, according to the principle of equivalence, apply a similar remedy in respect of subsidiary protection decisions. I do not understand the principle of equivalence to mean that equal remedies must be available for administrative decisions which have their origins in European law. The principle of equivalence describes the duty on member states of the European Union not to make it more difficult to vindicate EU rights than it is to vindicate purely national rights. 7. During the course of submissions, counsel moved away from this argument and instead sought to argue that as there was no express prohibition on seeking a revocation of subsidiary protection decisions; and no express prohibition on making a fresh application for subsidiary protection, and that the Department of Justice had therefore acted unlawfully in failing to revoke and refusing to allow a fresh application for subsidiary protection. In my view, this argument, even if no such prohibitions exist, could not be enough to persuade me that any illegality attaches to this refusal to revoke or refusal to permit a fresh application for subsidiary protection. Self evidently, the absence of a prohibition on revocation of, or fresh application for, subsidiary protection does not require such applications to result in a positive outcome. The flaw in the applicant’s case is that the respondent did not, as is asserted, refuse the applications because of a general prohibition on such applications. The reasons for the refusals are identified in paragraph 5 above. The applicant has failed to persuade me to the standard necessary on an application for leave to seek judicial review that this ground should be permitted to be advanced. 8. During the course of argument, counsel also sought to persuade me that the principal mischief in the decision was the failure of the first named respondent to address the request for permission to make a fresh application for subsidiary protection. This complaint is not reflected in the intended pleadings. The draft order of certiorari presented by the applicant is framed on the basis that the Department of Justice expressly refused to permit a fresh application to be made. If it were the case that there had been a failure to reply to such a request, one would have expected the proceedings to be framed, not in terms of a request for an order of certiorari, but perhaps in terms which sought to compel the Minister to answer the request or for declaratory relief that the request made be answered. The applicant’s lawyers have not chosen to frame the proceedings in that manner, and in my view, the reason this approach was adopted it because the letter from the Department of Justice of 18th December 2013, express a refusal to permit a fresh application for subsidiary protection to be made. Such a refusal is the logical consequence of the preceding refusal to revoke the extant decision on subsidiary protection. Thus the complaint fails because the respondent did not fail to reply to the request that permission be given for apply for revocation. 9. In addition to the matters addressed to the court by way of oral submission, the applicant has set out a number of grounds in a Statement Grounding Application for Judicial Review which ground the reliefs he seeks in this application. I shall address each in turn. The first ground is as follows:
10. The second ground advanced is in the following terms.
11. The third ground advanced is as follows:
12. The fourth ground advanced is:
14. The fifth ground advanced is in the following terms:
16. The sixth ground advanced is as follows:
17. The seventh ground advanced by the applicant is as follows: “Regard should have been had by the first respondent to the infirmities that must now attach to the subsidiary protection refusal of 5th March 2012, in the light of subsequent CJEU and domestic jurisprudence.” 18. This ground must fail because no explanation has been provided why, (notwithstanding the fact that the judgment of the Court of Justice in M.M. is dated November 2012, and the judgment of the Irish High Court is dated January 2013) complaint is made for the first time almost 12 months later in respect of matters which should have been readily apparent to the applicant, at least since the date of the decision of the Court of Justice of the European Union in M.M., if not before then, given that the complaints which were agitated in that case were well known to practitioners of asylum law in Ireland. 19. The applicant has failed to make out an arguable legal error in the decisions in suit. No argument has been addressed to me which would persuade me to permit the applicant to challenge the decisions which were taken in response to the applicant’s letter of 13th December 2013, and no argument has been addressed to me to persuade me that there was a failure on the part of the respondents to address a request that the applicant be permitted to make a fresh application 20. For those reasons, I refuse leave to seek judicial review.
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