MM v Minister for Justice and Law Reform, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2013] IEHC 9
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Jan 2013
Judge:Hogan J
Category:Refugee Law
Keywords:Protection, Protection (Application for International), Protection (International), Refugee
Country of Origin:Rwanda
URL:https://www.courts.ie/acc/alfresco/8ccf40d0-4119-477b-be7a-c41c5f81cf2b/2013_IEHC_9_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts 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 … Read More

Principles:

The duty of cooperation referred to in Article 4(1) of the Qualification Directive does 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.

When a Member State has chosen (as Ireland has) 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 is fully guaranteed in each of the two procedures.  This is all the more justified in a situation where the national authority (the Minister) in giving its reasons for rejecting the application for subsidiary protection refers to a large extent to the reasons already relied upon to reject the asylum application. The conditions for the grant of refugee status and subsidiary protection status are different.

The judgment of the ECJ may imply that it may be necessary to have an oral hearing, but when read in its totality, the ECJ’s judgment cannot be interpreted as meaning that an oral hearing would be routinely required at subsidiary protection stage.

Under the bifurcated Irish asylum and subsidiary protection system, the subsidiary protection application must be considered distinctly and separately from the asylum application. The Minister must decide the subsidiary protection issue without any reliance on the prior reasoning contained in the asylum decision.

For the hearing before the Minister in subsidiary protection applications to be effective, such a hearing should at a minimum involve a procedure whereby:

  1. the applicant is invited to comment on adverse credibility findings made by the Refugee Appeals Tribunal;  
  2. the applicant is given a completely fresh opportunity to revisit all matters bearing on the subsidiary protection claim; and
  3. involve a completely fresh assessment of the applicant’s credibility, and the mere fact that the Refugee Appeals Tribunal ruled adversely on this question is not in itself sufficient and is not even directly relevant to this fresh credibility assessment.
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