A significant
judgement was delivered today by Mr Justice Hogan in the case of MM v The
Minister for Justice which will have far reaching effects on the current
subsidiary protection procedure in Ireland.
Mr Justice Hogan
held that the Minister for Justice had
failed to afford the applicant an effective hearing at subsidiary protection
stage because the Minister had relied completely on the adverse credibility
findings made by the Refugee Tribunal regarding the applicant’s claim of harm
he may suffer in his country of origin, and because the Minister did not afford
the applicant an independent and separate adjudication of these claims.
Mr Justice
Hogan’s decision was reached in light of the recent comments of the Court of
Justice, made in response to the High Court’s reference to the Court of Justice on the same
case. The Court of Justice had criticized the current system in Ireland
where applicants must apply for
subsidiary protection separately and subsequently to the asylum application, in
circumstances where they have no opportunity for a fresh hearing to address the
adverse credibility findings made
against them at the asylum stage. The
Court of Justice ‘s reasoning was that if Ireland wished to have a separate
application procedure for subsidiary protection, this separate procedure must
be fully distinct from the asylum application procedure and the findings made
therein.
Mr Justice Hogan
applied the Court of Justice’s reasoning to the Applicant in the MM case to
find that the subsidiary protection decision was unlawful and must be quashed,
because the Minister had relied entirely on the reasons advanced by the Refugee
Appeal Tribunal to reject the credibility
of the applicant’s claim. No
separate or distinct investigation was carried out. The applicant was therefore
not afforded an effective hearing at the subsidiary protection stage.
The consequences
of this decision are very significant. Most refusals of subsidiary protection
applications are arrived at to a large extent by the deciding officer’s reliance on adverse credibility findings by
the Refugee Appeals Tribunal. This
procedure is now deemed legally flawed and in breach of EU law. The Minster is
now clearly on notice that he is required to afford the applicant an
opportunity to revisit such matters in the context of an “effective hearing”,
which currently does not exist.
Mr Justice Hogan
has proceeded to envisage what this
“effective hearing” would involve at a
minimum level. He indicates that the applicant would be invited to comment on any adverse credibly
findings made by the Refugee Appeals Tribunal, the applicant would be given an
opportunity to revisit all matters bearing on the subsidiary protection claim,
and the Minister would carry out a completely fresh assessment of the
applicants credibility .
It may be the
case that an oral hearing will be required, but will not necessarily be
required in every case of subsidiary protection.
This decision
means that the Minister will have to put in place a new or significantly
amended procedure for subsidiary protection
applications. Until this happens, each decision may also be deemed to be
unlawful. Mr Justice Hogan acknowledges
the far reaching consequences of this decision for the practical administration
of the subsidiary protection scheme, and suggests that it is a matter that the
Oireachtas might urgently address.
Brophy Solicitors
24.1.13
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