Ireland - O.M.R v. Minister for Justice and Equality & Others, 2014 No. 585 JR, 6 September 2016

Facts:

The applicant’s refugee claim relates to her conversion to Christianity from Islam. She claims that her church, in which she worked as a prophetess, was attacked by Boko Haram in April 2010. She also asserts that Boko Haram is aware that she converted to Christianity and that they will track her down and kill her if she returns to Nigeria.

Her asylum application had been refused on the basis of credibility issues. The court also considered that State protection in Nigeria was available to the applicant should she require it. Additionally, the applicant could internally relocate in Nigeria should she require to do so.

The applicant’s principal argument for leave for judicial review is that her core claim of persecution on account of her conversion from Islam to Christianity was not addressed by the first instance decision-maker, thereby rendering the finding regarding available State protection moot.  

The central application seeking relief under judicial review was that “The core of the applicant’s claim was not addressed satisfactorily resulting in a position that if the applicant’s claim were to be simply appealed to the Refugee Appeals Tribunal (the Tribunal) then it would be effectively be dealt with there at first instance without there being any appeal therefrom. This would result in a denial of the applicant’s right to an effective remedy under domestic, Convention and EU law.”

Decision & reasoning:

The issue to be decided within the proceedings is whether the applicant is entitled to seek leave for judicial review and an order of certiorari of the decision of the Refugee Applications Commissioner, or whether the complaints made on behalf of the applicant with respect to the decision are capable of being addressed by way of appeal to the Refugee Appeals Tribunal.

The court was not persuaded that the failure of the Commissioner to expressly pronounce on the question of the applicant’s conversion renders the hearing unfair, such that it constitutes an error of jurisdiction. The judge relied upon a number of judgements of the High Court and in particular P.D. v. Minister for Justice which held that “1. The High Court is entitled to grant certiorari or other public law remedy in respect of a decision of the Refugee Applications Commissioner where an error as to jurisdiction is identified.

2. The significance of the error will determine whether the court may exercise its discretion to grant judicial review.

3. Not all errors as to jurisdiction attract judicial review.

4. The court must carefully consider the nature of the error in deciding whether the interests of justice require the first instance decision to be quashed and taken again rather than the error being the subject of an appeal to the Refugee Appeals Tribunal.

5. The court should bear in mind the extent of the Refugee Appeals Tribunal's capacity to provide a remedy and reverse the error. (The nature of appeals to the RAT has recently been fully described by Charleton J. in the Supreme Court in M.A.R.A. (supra)).”

Finally, the fact that the Irish courts limit access to judicial review of the decision of the Refugee Applications Commissioner does not breach the applicant’s right to an effective remedy under Article 39 of the Procedures Directive 2005/85 and Article 47 of the EU Charter. It is open to a protection applicant to pursue at the time of his/her appeal to the Refugee Appeals Tribunal any error of law or fact on the part of the Commissioner.

The judge stated that “the procedures provided for under the Refugee Act 1996, providing as they do for a full de novo appeal from the Commissioner’s decision to the Tribunal, cannot be equated with the situation which was presented in the CJEU case Diouf. The decision of the Refugee Applications Commissioner is fully appealable to the Tribunal. To my mind, the applicant’s arguments as to the difficulties inherent in seeking leave to judicially review of the Commissioner’s decision after the Tribunal has rendered its decision on appeal are without merit and indeed moot given the nature of the statutory system which is in place under the 1996 Act.” Overall he held that there was nothing in Diouf to support the applicant’s central premise that the jurisprudence of the Irish courts limiting access to judicial review of the decision of the Refugee Applications Commissioner breaches the applicant’s right to an effective remedy under Art. 39 of the Directive and Art. 47 of the EU Charter. The application for leave to apply for judicial review was dismissed.

Outcome:

Leave for judicial review was dismissed. 

Subsequent proceedings:

The applicant sought leave to stay the injunction in linked Court proceedings which was refused.