The High Court dismissed S.J.’s judicial review challenge to the Minister for Justice and Equality’s refusal to consent to a second application for subsidiary protection. The judgment, delivered by Mr Justice David Keane on 10 October 2017, addressed whether an applicant was entitled to have the credibility of the same statements assessed entirely separately in successive refugee status and subsidiary protection procedures.
S.J., a Georgian national, arrived in Ireland in December 2006 and applied for asylum. Her application was refused, and the Refugee Appeals Tribunal affirmed that decision in September 2007. The Minister later refused her application for subsidiary protection, a decision she did not challenge. A deportation order was made in February 2011.
In 2013, her solicitor asked the Minister to revoke the deportation order and reconsider subsidiary protection. After separate proceedings were compromised, the Minister agreed to treat that request as an application for consent to make a further subsidiary protection application. The Minister refused consent in May 2015, and a review upheld the refusal in September. S.J. sought judicial review of the review decision.
She argued, among other things, that the original subsidiary protection process had not given her an effective opportunity to address credibility concerns, and that the Minister wrongly relied on the adverse credibility finding made during her refugee status claim. She also argued that later case law was a new element requiring consent to a further application.
Justice Keane held that an applicant must be able to make submissions and point to new evidence, information or a material error undermining an earlier credibility finding. But the right to be heard does not, by itself, entitle an applicant to a fresh assessment from scratch of the same statements in every successive procedure. Where the earlier finding is properly reasoned and no basis to undermine it is shown, the subsidiary protection decision-maker may take it into account and adopt it with reasons.
The court said S.J.’s challenge relied on the broader proposition that any reliance on an earlier adverse finding invalidated the later decision. It rejected that proposition. The judge therefore did not decide whether the cited developments in case law could qualify as a new element under the statutory test for a subsequent application, or whether the Minister’s refusal was out of time to challenge.
The court also rejected S.J.’s claim that the Minister had breached an undertaking to apply a different test. She had not provided evidence of the undertaking’s terms or established what alternative test was said to apply. The application was dismissed. The judge said he would hear the parties on the appropriate consequential orders; the judgment did not specify those orders.