Ireland - High Court, 24 March 2011, M.A.A. v Minister for Justice, Equality, and Law Reform, (unreported)

Facts:

The applicant was an Iraqi male who arrived in Ireland in March 2005. He applied for refugee status to the Office of the Refugee Applications Commissioner (ORAC) stating that he was at risk from an Islamic group in Iraq because his brother had caused the arrest of one of the group’s associates. His application to ORAC was refused and the Refugee Appeals Tribunal (RAT) affirmed this decision.

In 2006 the applicant submitted an application with reference to section 3 (6) of the 1999 Immigration Act which lists factors that the Minister must consider when determining to make a deportation order. In 2007 he submitted an application for subsidiary protection. In March 2010 both applications were refused and he was issued with a deportation order.

An application was made for leave to apply for judicial review of the decisions to refuse subsidiary protection and issue a deportation order.
 

Decision & reasoning:

An application for leave to apply for judicial review of a decision of the Minister for Justice refusing an application for subsidiary protection is subject to the test of whether the decision contained an arguable ground for stating that the decision was invalid. This is a lower test than judicial review of a deportation order, which is whether there is a substantial ground for stating the decision is invalid.

There is no obligation on a decision maker, including a subsidiary protection decision, to return to an applicant, after an application has been made, and inform them what documents have been sourced for the basis of a decision. However, if the decision maker identifies a document late in the procedure, that has the effect of radically altering the basis of the application it may be necessary to contact the applicant. Also, if the decision maker had access to a stream of information that was not publicly available but was in conflict with publicly available material this may require the decision maker to inform the applicant.

Art 4.1 of the Qualification Directive does not impose on the decision maker a duty to cooperate with the applicant on elements other than those listed at Art 4.2 (applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection).

The decision maker on behalf of the Minister for Justice was entitled to rely on the decision of the RAT (even if the RAT member was subject to controversy due to the high number of appeals dismissed by him), particularly in light of the applicant’s implausible claims and the fact that the applicant did not attempt to challenge the decision of the RAT when it was made.

Outcome:

Application for leave to apply for judicial review refused.

Observations/comments:

Obiter Comments:

Documentation that assesses the security situation in a volatile area which is three years old is of limited value. A decision maker who relies on such information could be subject to criticism and challenge. Information relating to societal attitudes and tribal customs may evolve more slowly and therefore be more reliable. There is also a burden on all parties to submit the most up-to-date information available.

The representative of the Minister for Justice’s claim that the security situation in Iraq was “not yet ideal” was a markedly optimistic choice of language.

The conclusions of the decision of the UK’s Immigration and Asylum Chamber in HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) were consistent with the findings of the Minister’s representative.

The decision of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) was quashed by the UK Court of Appeal in HM (Iraq) & Anor v Secretary of State for the Home Department [2011] EWCA Civ 1536 (13 December 2011).