The High Court ruled that a Mauritian national must pursue his appeal to the Refugee Appeals Tribunal (RAT) before seeking judicial review over the refusal of subsidiary protection. The court found his challenge to the Irish definition of torture premature because the first-instance decision maker had rejected his credibility.
The ex parte application sought leave to apply for judicial review, including a declaration that the European Union (Subsidiary Protection) Regulations 2013 did not properly transpose the EU Qualification Directive. The applicant also sought certiorari to quash the Refugee Applications Commissioner’s refusal of subsidiary protection, dated 10 June 2015.
The applicant arrived in Ireland in 2007 and lived and worked here for several years with a valid visa. After an unsuccessful asylum application in 2012, he applied for subsidiary protection on 8 April 2013. He said he feared serious harm in Mauritius from a criminal gang he had previously worked for.
His counsel argued that the 2013 Regulations’ definition of torture was too narrow because it relied on a statutory definition that restricted the offence of torture to acts carried out by, or at the instigation of, a public official. Counsel submitted that this failed to reflect the Directive and could prevent protection being refused on the basis of that definition.
The first-instance decision maker had rejected the applicant’s account as not credible on the balance of probabilities, citing delay in seeking asylum, insufficient detail about his involvement in the gang and doubts about the plausibility of his claimed role. The judgment records that the applicant received the negative determination on or about 13 July 2015.
Justice Colm Mac Eochaidh held that the definition-of-torture challenge was premature because, given the credibility finding, the definition was irrelevant to the decision on the claim. He said the applicant had an unfettered right of appeal to the RAT, which was the appropriate remedy at that stage.
The judge said the RAT, as a state body, was bound by EU law and could be asked to apply the Directive if its definition of torture conflicted with the Irish regulations. If that argument failed and a decision depended on an unlawful definition, the applicant could then seek judicial review. If the RAT rejected the appeal on credibility grounds, the definition issue would again be irrelevant.
The court also ruled that the challenge to the refusal of subsidiary protection was unwarranted because the applicant could appeal on questions of law and fact to the RAT. The matter should be pursued there without delay; judicial review remained available if a relevant mistake caused injustice. The judgment addresses the application for leave and the appropriate route of challenge; it does not determine the applicant’s ultimate eligibility for subsidiary protection.