Ireland - High Court, 18 July 2013, A.A. v Minister for Justice and Law Reform & Ors. [2013] IEHC 355

Facts:

The Applicant challenged Minister's negative decisions regarding subsidiary protection and the issuing of a deportation order based on a finding that the Applicant is a national of Tanzania and not of Somalia, as he claimed.

It was alleged that the Minister did not have regard to two language reports which were submitted by the Applicant to the same Department for the purposes of a subsequent asylum claim the day after the subsidiary protection application was made. The outcome of the application for permission to make a subsequent asylum application was negative.

The language reports were not submitted in relation to the subsidiary protection application but were referred to in correspondence in that context. The references to the report were made in response to an invitation to make submissions in relation to the disclosure of a UK Border Agency report which linked the Applicant’s fingerprints to two successful visa applications to enter the UK on a Tanzanian passport with similar personal details to the Applicant, in circumstances where the Applicant had claimed that he had never travelled outside Somalia prior to entering Ireland.

The Applicant accounted for the second record of his having a Tanzanian passport and visa for entry to the UK by saying that he travelled there only for the purposes of obtaining a visa to travel to Ireland via the UK on a false Tanzanian passport. He did not explain the first similar record relating to three years previous.

The decision maker for the subsidiary protection application rejected the Applicant’s explanation and concluded that the record of the Tanzanian passport correctly identified the true identity of the Applicant, and noted that the Applicant had made no claim that he would be at risk of serious harm if returned to Tanzania. No reference was made to the two language reports relied upon by the Applicant.

The Applicant claimed in the High Court that the two subsequent language reports (identifying his knowledge of Bajuni, a Somali Bajuni accent, and appropriate knowledge of the area and customs) submitted in the application to make subsequent asylum claim, and referred to in the subsidiary protection claim, were capable of establishing his Somali identity but had not been considered in the decisions under review.

The Applicant further complained that the Minister failed to give the Applicant an opportunity to address the allegation that he was a Tanzanian national.

The Minister claimed that the Applicant’s lack of candour disentitled him to obtain relief from the High Court, as it was a discretionary form of relief.

The hearing of the matter had been adjourned to await the High Court interpretation of Case C-277/11, M.M. v. Minister for Justice, Equality and Law Reform & Ors, and the parties were then invited to make submissions in light of that decision.

Decision & reasoning:

The Court held that the Minister had not failed to give the Applicant an opportunity to address the allegation that he was a Tanzanian national,on the basis that the Applicant was contacted by the Minister by letter regarding that issue prior to the making of his decision.

There was no evidence that the two language reports at issue were considered for the purposes of the subsidiary protection decision or the deportation order, and in respect of the subsidiary protection decision, the failure to consider the reports was unlawful by reference to the M.M. decision as the Minister did not conduct a completely fresh assessment of the Applicant’s credibility.

The Court considered the law on the discretionary nature of judicial review. It identified factors such as, lack of good faith, and the general conduct of the Applicant, but found that although no explanation was proffered regarding the first UK Border Agency record linked to the Applicant’s fingerprints, this was to be considered “in the realm of the curious rather than the bad,” and did not reveal conduct that should deprive the Applicant of a remedy otherwise deserved.

The references to the language reports in the Applicant’s correspondence sent in reply to the claim that records linked the Applicant’s fingerprints to a Tanzanian identity, had the effect of adding the language reports to the decision making process. It was thus incumbent on the decision maker to weigh these reports before rejecting the claims made, and should have balanced the evidence from the UK that the Applicant was Tanzanian with the evidence from the language reports that he was Somalian. The conclusions were reached in the absence of this exercise, and were thus unlawful.

Outcome:

Relief granted: the Minister’s refusals of the application for subsidiary protection and the decision to issue a deportation order were quashed, and remitted for reconsideration. A copy of the High Court’s decision would be available to the decision makers for the reconsideration at the election of the Applicant.

Other sources:

Hogan & Morgan, 'Administrative Law in Ireland' (4th Ed.)