ASA v the Minister for Justice

The applicant brought judicial review proceedings challenging the manner in which s. 49 of the 2015 Act was operated on a general basis by the Minister for Justice. The International Protection Act 2015 differentiates responsibility with respect to the decision made on refugee status and subsidiary protection, which is made by an International Protection Officer (IPO), and the s. 49 decision, which is made by the Minister for Justice.  However, in practice, the s. 49 decision is taken on behalf of the Minister for Justice by an officer appointed as an IPO. The applicant challenged, inter alia, the fact that this failed to respect the separate and distinct roles of an IPO determining an international protection claim and the Minister exercising the executive function to permit a person to remain in the State on humanitarian grounds.

Reasoning: With reference to the Carltona principle, Burns J recognised that a suitably experienced official can make decisions within the power of a Minister without power being expressly delegated to them. This applies unless there is either an express statutory derogation from the Carltona principle or derogation arises by necessary implication from the terms of the statute.

In examining whether the 2015 Act prohibits the derogation of the Minister for Justice’s s. 49 power, Burns J recalled that the 2015 Act does not expressly state that a permission to remain decision can only be taken by the Minister and does not expressly prohibit IPOs from making a s. 49 decision.

With regard to whether the 2015 Act by necessary implication prohibits an IPO from taking a s. 49 decision, Burns J held that, in light of the fact that the 2015 Act introduces the single procedure, the Court would have expected the Oireachtas to have been explicit in restricting the decision-making power of the Minister to officers who were not IPOs. This was not done by the Oireachtas. Furthermore, s. 74(2) of the 2015 Act envisages than an IPO can also be an officer of the Minister. While s. 35, concerning the interview report, requires the IPO to indicate anything of relevance to the Minister’s decision under s. 49, Burns J held that this does not indicate that the IPO’s role is not extended to the s. 49 decision, but rather it recognises their expertise and experience in drawing the attention to relevant matters for the s. 49 decision. Thus, the 2015 Act was held to not raise any necessary implicit limitation on an IPO making s. 49 decisions.

Burns J recalled that the s. 49 decision is not an appeal decision and in terms of non-refoulement, it was recognised that the s. 49 decision maker can have regard to the earlier decision and any additional refoulement concerns would be properly and appropriately considered afresh at the s. 49 stage. Thus, it was held that the role of an IPO under s. 49 does not conflict with their duties and functions as an independent IPO.

Lastly, it was held there were no errors on the face of the record.

Decision: Relief sought refused.