The question in these proceedings was the extent to which the Minister is obliged to give an applicant for subsidiary protection a separate opportunity to be heard in respect of his subsidiary protection application in view of the decision of the ECJ in Case C-2 77/2012 MM v Minister for Justice and Law Reform (22 November 2012).
The applicant was a national of Rwanda of Tutsi ethnicity. He entered the State in 2006 for the purpose of post-graduate study on a student visa. His visa expired in April 2008 after his graduation and he applied for asylum the following month. He claimed that following his graduation as a law student from the University of Rwanda in 2003, he was directed by the Rwandan authorities to work as a staff sergeant at the offices of the military prosecutor, that he was required to do this and had little or no choice in the matter. As an undergraduate in Rwanda he had done research into the legal framework governing the investigation of the Rwandan genocide in 1994. The applicant maintained that his effective conscription into the military prosecutor’s office was an attempt to silence him and to prevent him divulging information regarding the (non) prosecution of offences relating to the genocide, and that he had a well founded fear of persecution because of these events.
The applicant had the benefit of a personal interview with the Refugee Applications Commissioner’s office but it rejected his claim for refugee status. He appealed to the Refugee Appeals Tribunal but he was not afforded an oral hearing and his appeal was decided on the papers only. The Tribunal rejected his claim on general credibility grounds. It found that it was difficult to believe that the applicant would be offered a position as a prosecutor if he was considered a threat or nuisance to the authorities, that the applicant left Rwanda several times in 2005 and that he had not claimed asylum shortly after his arrival in Ireland in 2006. This decision was not challenged.
The Minister informed the applicant that he was refused refugee status and invited him to make an application for subsidiary protection and, if he thought appropriate, to submit further information in support of his claim that he would suffer serious harm if returned to Rwanda. The Minister ultimately rejected the application.
The applicant challenged the Minister’s decision on the basis that the second sentence of Article 4(1) of the Qualification Directive imposed a duty on the Member State (the Minister) to provide an applicant with a copy of any draft decision which was adverse to the applicant for comments prior to its adoption. This had been rejected in previous decisions but the High Court decided to refer a question to the ECJ on the interpretation of Article 4(1), in light of views expressed by the Dutch Council of State which seemed to support the applicant. The High Court expressed its opinion that it did not believe there was any breach of fair procedures by the Minister in this respect.
Following the decision of the ECJ on the preliminary reference, the High Court held that there was no doubt but that the ECJ rejected the applicant’s argument concerning the interpretation of Article 4(1), as it held that the duty of cooperation referred to in the Article did not extend so as to require the decision maker to supply the applicant with a draft of any possible adverse decision for comment prior to its adoption. Hogan J held that the applicant failed on that point.
However, in the second part of its judgment the ECJ had gone beyond the scope of the question referred. It had considered that the case raised more generally the question of the right of the foreign national to be heard in the course of the examination of his application for subsidiary protection where there are two separate procedures, one after the other, for examining asylum applications and subsidiary protection applications. The ECJ had said it was important to determine whether, in such circumstances, it was unlawful not to hold a “further hearing” of the applicant in the course of an examination of the subsidiary protection application on the ground that he has already been heard during the procedure relating to his application for refugee status.
The High Court considered that the real question was what the ECJ meant by the words a “further hearing”, and whether this meant that the Minister must hold some form of oral hearing or conduct a personal interview, because it was clear that the applicant was permitted to advance his case in writing. The ECJ had not accepted that where an application for subsidiary protection is dealt with in a separate procedure, which requires that it take place after the rejection of an asylum application and where the applicant has been heard in that (asylum) examination, that it is not then necessary for the applicant to be heard again for the purpose of considering his subsidiary protection application.
The ECJ stated, rather, that when a Member State has chosen to establish two separate procedures, one following the other, in view of the fundamental nature of the applicant’s right to be heard, it was important that this right was fully guaranteed in each of the two procedures. It said this interpretation was all the more justified in a situation, such as the case which gave rise to the preliminary reference, where the national authority (the Minister) in giving its reasons for rejecting the application for subsidiary protection referred to a large extent to the reasons already relied upon to reject the asylum application. This was also despite the fact that the conditions for the grant of refugee status or subsidiary protection status are different. The ECJ held that Member States must not only interpret their national law consistently with EU law but also make sure that they do not rely on an interpretation which would conflict with the fundamental rights protected by the EU legal order or other general principles of EU law.
In considering those findings of the ECJ Hogan J observed that it had stated at para. 35 of its judgment that there was no provision in the European Communities (Eligibility for Protection) Regulations 2006 for the applicant for subsidiary protection to be heard in the course of the examination of his application. The High Court stated that it must be accepted that para. 35 may be thought to imply that the ECJ was referring to the necessity of an oral hearing, because the Regulations do provide for the applicant to be heard via a written procedure which imposes an obligation on the decision maker to consult and consider all relevant information provided by the applicant. But Hogan J held that, at the same time, the judgment of the ECJ when read in totality cannot be interpreted as meaning that an oral hearing would be routinely required at subsidiary protection stage.
The High Court considered that the ECJ was troubled by aspects of the procedure actually followed in this case such that it went out of its way to give guidance to the national Court on this question. Hogan J noted that the ECJ specifically emphasised that the Irish asylum and subsidiary protection procedures are distinct and different. He held that the logical corollary was that under this bifurcated system the subsidiary protection application must be considered distinctly and separately from the asylum application. The High Court held that this meant that the Minister must decide the subsidiary protection issue without any reliance on the prior reasoning contained in the asylum decision. Otherwise it may be taken to effectively preclude a subsidiary protection applicant re-opening certain issues at that stage, or that it may create any quasi-estoppel arising against an applicant (by reason of a failure to challenge an adverse asylum application by way of judicial review), at least in the absence of an effective hearing where the applicant was given a fresh opportunity to revisit these issues, or where they were expressly put to the applicant by the decision maker and where the decision maker made a fresh decision on the applicant’s credibility and other relevant issues. The High Court considered that this was underscored by the ECJ’s reference with evident disapproval to the fact that the Minister had relied on the adverse credibility findings made in the asylum application as a ground for rejecting the subsidiary protection application.
Applying those principles to the facts of the case the High Court quashed the Minister’s subsidiary protection decision. Hogan J stated that the Minister’s findings rejecting the claim that the applicant would be at risk of serious harm if returned to Rwanda and that the applicant had not demonstrated that he was without protection in Rwanda, were general in nature, but the claim was not a generalised claim. Rather, it turned on a highly specific claim that this applicant would suffer serious harm by reason of his specific involvement in the military prosecutor’s office and his access to sensitive information regarding the prosecution of genocide cases. So far as that claim was concerned the Minister relied entirely on the Refugee Appeals Tribunal’s reasons for rejecting the credibility of the applicant’s claim and the Minister made no separate and distinct findings of his own on these critical questions. The High Court considered that it was this feature of the subsidiary protection procedure that so clearly troubled the ECJ.
The Court held that in light of the guidance given by the ECJ the Minister failed to afford the applicant an effective hearing at subsidiary protection stage. This was precisely because he relied completely on the adverse credibility findings which had been made by the Refugee Appeals Tribunal in relation to the applicant’s contention that he would be harmed if he were to return to Rwanda because of his involvement in the military prosecutor’s office, and because the Minister made no independent and separate adjudication on these claims.
In order for the hearing before the Minister to be effective in the sense understood by the ECJ, such a hearing would at a minimum involve a procedure whereby:
- the applicant was invited to comment on adverse credibility findings made by the Refugee Appeals Tribunal;
- the applicant was given a completely fresh opportunity to revisit all matters bearing on the subsidiary protection claim; and
- involve a completely fresh assessment of the applicant’s credibility, where the mere fact that the Tribunal ruled adversely on this question would not in itself be sufficient and would not even be directly relevant to this fresh credibility assessment.