The applicant had been refused asylum by the Refugee Applications Commissioner, and withdrew his appeal to the Refugee appeals Tribunal on the basis that his fear of serious harm in Nigeria was not one with a Convention nexus. His subsequent application for subsidiary protection, which was based on the same facts as his asylum claim, purported to reject the Commissioner’s adverse credibility findings, and “clarify and correct” aspects that the Commissioner did not accept. The Minister refused the subsidiary application, and issued the applicant with a deportation order. The applicant sought leave for judicial review to challenge both of those decisions.
In respect of the subsidiary protection decision, the applicant argued, inter alia, that the Minister had failed to engage with the explanations and clarifications that he had set out in his application. The Court stated that the applicant sought to challenge the Commissioner’s negative credibility findings on the basis of explanations why he should be believed, but held that this challenge was not well founded because it failed to appreciate the essential procedural character of international protection underpinning the common asylum system of the EU.
The Court stated that the European Community (Eligibility for Protection) Regulations 2006 presuppose that an application for subsidiary protection will have been examined in the first instance in the asylum process, and that where the Commissioner (or Tribunal) has found an applicant’s claim to be lacking in credibility, there is no obligation on the Minister to reconsider credibility in the absence of new evidence, information or other basis capable of demonstrating that the original findings were vitiated by material error on the part of the decision maker. The Court said that such a requirement would require the Minister not to consider whether the applicant was eligible for subsidiary protection, but for asylum. The Court stated that if findings of fact, including findings of lack of credibility, are to be challenged, such a challenge must be done by way of appeal to the Tribunal in the asylum process. In the circumstances, the Court held the applicant did not have grounds for judicial review to challenge the subsidiary protection decision (B.J.S.A. [Nigeria] v Minister for Justice  IEHC 381 cited with approval)
The Court stated that it may be that the principle of fair procedures will require a decision maker to interview an applicant for subsidiary protection who seeks to rely upon a risk of harm from a source not previously considered in the asylum process, and that nothing in the 2006 Regulations precludes this.
In respect of the challenge to the deportation order, the main focus of the applicant’s argument was the alleged invalidity of the order by reference to Regulation 4(5) the European Community (Eligibility for Protection) Regulations 2006, those being regulations that give effect to Directive 2004/83, the Qualification Directive.
Regulation 4(5) provides:
(5) Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in section 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.
In circumstances where the examination of file report on which the deportation order was based predated the subsidiary protection decision (although the signing of the deportation order itself post dated that decision), the applicant argued (1) that it was clear that the Minister ‘proceeded to consider’ the making of the deportation order before the subsidiary protection application had been determined, that being contrary to the strict statutory interpretation of Regulation 4(5), and (2) that the subsidiary protection decision had been prejudged by the prior consideration given to the making of a deportation order.
The Court rejected these arguments. Re (1), the Court held that the clear intent of the 2006 Regulations was that ‘proceed’ was to be read in the sense of ‘proceed’ or ‘continue’, and that this is because it is part of the scheme of the statutory instrument giving effect to the Qualifications Directive and situating the subsidiary protection process within, and adapting it to, the deportation scheme of s. 3 of the Immigration Act 1999. The Court stated that the first step in the deportation process had already been taken by the decision to notify the proposal to deport, and that the deportation process is interrupted by the requirement to determine the subsidiary protection application. Accordingly, the Court held, it is in the sense of resuming or continuing the procedure initiated with the notification of the deportation proposal that the words ‘proceed to consider’ are used in Regulation 4(5) (O.O. v Minister for Justice, Equality and Law Reform  IEHC 165 and  IEHC 175 followed).
Re (2), the Court held that the work done by the officials in preparing the examination of file re deportation was preparatory work by way of summarising, analysing and drafting, and that prejudgment which vitiates a decision making process can only be prejudgment or bias on the part of the actual decision maker, and that the Minister remained entirely free to make his own judgment on the case (O.O. v Minister for Justice, Equality and Law Reform  IEHC 165 and  IEHC 175 followed).