The High Court refused P. M. leave to seek judicial review on her challenge to the remedy available against the Minister’s refusal of refugee status, while adjourning the balance of her application pending the outcome of a reference to the Court of Justice of the European Union.
In a judgment delivered on 28 October 2011, Mr Justice Hogan said that even if the Minister’s decision fell within the EU Procedures Directive’s requirement for an effective remedy, the Irish judicial review procedure provided one. He also said the applicant had not explained how she had been denied an effective remedy or how she had been prejudiced by its alleged absence.
P. M., described in the judgment as a Botswanan national, arrived in Ireland in January 2009 and sought asylum. She contended that her pygmy status meant she could not resist villagers’ instruction that she become a fetish priestess, which would conflict with her religious beliefs. The court did not determine the merits of that asylum claim in this judgment.
The Refugee Applications Commissioner recommended refusal in March 2009, and the Refugee Appeal Tribunal affirmed that recommendation in December 2009. The Minister refused refugee status in January 2010. The applicant’s subsidiary protection application was refused in January 2011, and a deportation order followed later that month.
The proceedings, begun on 16 February 2011, sought to quash the deportation order, the subsidiary-protection refusal and the Minister’s refugee-status decision. The Commissioner’s recommendation and Tribunal decision were not challenged in these proceedings.
The applicant argued that Irish law did not properly implement the Directive’s requirement for an effective remedy. On time limits, Mr Justice Hogan adhered to his earlier view in D. v. Minister for Justice that the special time limit in section 5 of the Illegal Immigrants (Trafficking) Act 2000 could not be relied on against a claim based on the Directive if it was incompatible with EU law. He rejected the respondents’ argument that the general time limit for judicial review should then apply instead.
The judge said it was unclear whether the Minister’s decision was a first-instance or final decision under the Directive, or whether it was a decision on the asylum application covered by the Directive. He said a reference to the EU court would be needed if that question were critical, but concluded it was not necessary to resolve it for the remedy issue.
The court refused leave on the grounds addressed in the judgment. It adjourned the remaining part of the leave application, insofar as it relied on questions referred to the EU court in HID v. Refugee Appeals Commissioner, until that reference was answered. The judgment did not decide those remaining grounds.