The High Court has refused a Pakistani applicant leave to pursue his remaining challenges to a subsidiary protection decision and refused his request to add a new ground to judicial review proceedings after an earlier judgment had effectively resolved the case.
Mr Justice Hogan delivered the supplementary judgment on 1 March 2013. The case followed his January 2012 decision, which had rejected challenges to the subsidiary protection refusal and deportation decision but left two issues for later consideration: the effect of subsequent rulings in Sivsivadze and MM.
The applicant, identified in the judgment as SZ (Pakistan), is a Shia Muslim who arrived in Ireland in December 2005. His account included alleged threats from the banned Sunni organisation Sipah e Sahaba, an alleged shooting and alleged mistreatment by police in Pakistan. The judgment records that his asylum claim was rejected in 2008, a decision he did not challenge. The Minister refused subsidiary protection in April 2011, concluding that he had not shown an absence of protection or substantial grounds to believe he would face serious harm if returned.
The judge said the European Court of Justice ruling in MM did not assist the applicant. MM rejected the argument that the Minister had to provide a draft negative subsidiary protection decision for comment. The judge also said the ruling’s guidance on an independent assessment of subsidiary protection claims had no direct bearing here: the Minister had not relied on adverse credibility findings from the asylum process, and the applicant’s account had been treated as substantially credible. The risks and availability of police protection had been assessed separately. The court refused leave on this issue.
The applicant also sought to challenge the constitutionality of the law governing deportation orders, including their potential lifelong effect. The judge refused leave, noting that the applicant’s wife and children remained in Pakistan, that he had arrived in Ireland as an adult, and that the constitutional challenge had already been rejected in Sivsivadze, which remained the law at the time.
Finally, the applicant sought to add a new argument that the asylum appeal process did not provide the effective remedy required by EU law. The judge held that the case had already been disposed of, apart from the two reserved issues and ancillary matters such as costs. Adding the new ground would amount to introducing a new cause of action after judgment. He also found no compelling reason to reopen the proceedings.
The court therefore refused leave on the remaining challenge to the subsidiary protection decision and refused permission to amend the pleadings. The judgment does not determine any separate outstanding costs issue.