The applicant, a national of Cameroon, sought ex parte leave to seek judicial review of decisions of the Minister for Justice refusing to revoke a refusal of subsidiary protection a further refusal to permit the applicant to make a further application for subsidiary protection.
The applicant had applied for revocation of the refusal of his subsidiary protection application 21 months after the decision had issued to him. The Minister replied, noting that it had been open to him to challenge the refusal of his application at the time it issued to him, but that he failed to do so, directly or indirectly. Given the 21 month lapse of time, he indicated that he would not accede to the applications for revocation and re-entry to the subsidiary protection process.
The applicant argued that where the law provided for the possibility of re-entry to the asylum system, then according to the EU law principle of equivalence, it had to apply a similar remedy in respect of subsidiary protection decisions. He also contended that, as there was no express prohibition on either seeking revocation of subsidiary protection decisions or making a fresh application for subsidiary protection, the Minister had therefore acted unlawfully in failing to revoke and refusing to allow a fresh application for subsidiary protection.
The High Court refused the ex parte application for leave. It held that the principle of equivalence did not mean that equal remedies had to be available for administrative decisions which had their origins in European law.
It also held that, even if no prohibitions existed under Irish law on applying to revoke the refusal of a subsidiary protection application or to re-enter the subsidiary protection process, that was not sufficient to show that any illegality attached to the Minister’s refusal to revoke his refusal of the subsidiary protection application or to permit a fresh application for subsidiary protection. It held that the absence of a prohibition on revocation of, or fresh application for, subsidiary protection did not require such applications to result in a positive outcome. Moreover, the Minister did not refuse the applications because of a general prohibition on such applications, but for the reasons outlined above. The court held that the arguable grounds threshold had not been surmounted as would allow the applicant to obtain leave to seek judicial review.
The applicant also contended that the Minister acted unlawfully in purporting to exercise a discretion and/or unlawfully fettered such discretion in applying a policy that, because a previous application for subsidiary protection had been refused, it was not open to the applicant to seek to revoke the refusal of subsidiary protection and/or to make a further application for subsidiary protection. The court refused leave on this ground of challenge too, holding that it did not reflect the reasons on which the Minister refused the applications.
The applicant further contended that the Minister acted ultra vires and irrationally in rejecting the application without properly considering the country of origin information and the representations furnished by him. However, the court concluded that the Minister was only obliged to consider such material if he had decided to engage with the merits of the application to revoke the extant subsidiary protection decision and to permit a new application for subsidiary protection. As he had not done so, there was no need for him to have considered the new material advanced. He would only have been required to do that if he had embarked on an assessment of the merits of those applications.
The court also rejected the applicant’s complaint that the reason he did not make an application to have the decision reviewed on the law and the merits was that there was no procedure available to him. The court pointed out that the basis for his proceedings was that he had asked the Minister to revoke the earlier decision and to consider a new application, and that there was no reason why he could not have done that shortly after the refusal of his application for subsidiary protection.
The court rejected the applicant’s complaint that the refusal of his applications breached the prohibition on refoulement. It pointed out that the applicant had applied for revocation of the deportation order against him and that any question of refoulement would be dealt with in the context of that application, which was ongoing and about which no complaint was made.
Lastly, the court rejected the reliance placed by the applicant on the decision in MM because he had not given any explanation why he was only raising it 12 months after the matters arising out of that case ought to have been apparent to him.
In the light of all of the above, the High Court refused the applicant leave to challenge the validity of the impugned decisions.