Application for subsidiary protection cannot be processed where Somali national was not a failed asylum seeker

Judicial review - Somali national who had been granted refugee status in Hungary, granted leave to apply for judicial review of the decision of the Minister refusing to process and determine his application for subsidiary protection - a deportation order was issued - Judicial review proceedings were then initiated and injunctive relief was obtained on the basis that there were substantial grounds for believing that his deportation to Hungary would expose him to a real risk of torture, inhuman or degrading treatment - based on his personal experience of destitution as a refugee in Hungary and information obtained on the situation faced by those granted asylum in Hungary by his solicitor - deportation order was revoked - Minister wrote to the applicant’s solicitor stating that it was not intended to process the subsidiary protection application because the Minister was precluded by law from doing so – argued that he was a person in respect of whom refugee status had been refused by the Minister - consequently, he considered that he was entitled to apply for subsidiary protection - Minister maintains that the settlement terms were agreed on his behalf in circumstances in which a declaration of refugee status had not been refused by the Minister but rather, it had been decided not to admit the applicant to the asylum process because he had been granted refugee status in Hungary and was not claiming that he had any fear of persecution for a Convention reason there – Minister argued that he was not a person who was a “failed asylum seeker” and was, not lawfully entitled to seek or obtain subsidiary protection - ORAC declined to admit his application for refugee status - he took the decision not to disclose his asylum status in Hungary because he did not wish to be sent back to Hungary where he said he was rendered destitute - he remained in Hungary for two months following the granting of refugee status - no claim was made to the Commissioner that he was in fear of persecution for a Convention reason in Hungary - returned to Somalia - assaulted and seriously injured in attacks on his family home – decided to travel to Europe in order to apply for asylum again – informed that his wife and children had been killed when the family home had been set on fire - applied for refugee status on arrival in this State - did not refer to his previous application for asylum in Hungary - he was not granted a s. 11 interview with the Refugee Applications Commissioner because the Eurodac information indicated that he had refugee status already in Hungary - received a notice of a proposal to deport him - Examination of File - deportation order issued - covering letter sent to the Somali national was mistaken insofar as it referred to a refusal of refugee status as the reason for the deportation - initiated proceedings arguing that substantial grounds existed for believing that his deportation to Hungary or Somalia would expose him to a real risk of torture, inhuman or degrading treatment - proceedings were compromised - deportation order was revoked – terms of settlement – Minister would consider the subsidiary protection and leave to remain applications – post-agreement conduct – attempts to progress application for subsidiary protection – Minister issued him with a notice of intention to deport - refusal to withdraw the notice - first indication that the subsidiary protection application would not be considered - leave to judicially review the decision was granted on a number of grounds: the decision of the Minister to refuse to determine the application was in breach of his obligations under European Law and the refusal to determine the application was an unlawful breach of the Minister’s binding agreement - further application for leave to apply for judicial review - The enforcement of the settlement and legitimate expectation - court is satisfied on the evidence that both parties concluded the settlement terms on the understanding that the Minister could lawfully receive and consider an application for subsidiary protection, because the Somali national was a failed asylum seeker - agreed in error - definition of persons eligible for subsidiary protection - the Minister did not refuse to grant the applicant a declaration of refugee status - the two letters upon which reliance is placed by the applicant as indicative of the granting of refugee status issued in error – Somali national was considered to be “a person whose deportation would, in the opinion of the Minister, be conducive to the common good” - court is satisfied that, at all material times he was informed that his application had not been processed because he had refugee status in Hungary and was not asserting a fear of persecution there, as a result of which he could not have been granted refugee status in Ireland - he was operating under a mistake of fact and law - the Minister could not arrogate to herself a power or discretion which had not been conferred by the Directive or the Regulations so as to permit the consideration of the Somali national’s claim for subsidiary protection when he had not been refused refugee status - the donee of a statutory power may not extend its power by creating an estoppel or by entering an agreement under which it purports to assume or exercise a power not specifically conferred upon it - if the Minister considered the application for subsidiary protection, she would be acting ultra vires - the term of settlement was beyond the competence and power of the respondent, it was void ab initio – failed to establish that he has a legal right to the performance of the term of settlement or that there is any legal duty on the Minister to consider subsidiary protection in his case – second judicial review seeks to quash the proposal for his deportation - “telescoped” procedure – argued that the fresh proposal to deport him is unlawful because the Minister undertook to process and determine the application for leave to remain in the state – argued that the Minister was guilty of undue delay in the manner in which he had dealt with this application – court is not satisfied that the applicant has suffered any prejudice by the issuing of the notice of proposal to consider the deportation - all previous submissions made in relation to the application for leave to remain would be considered fully – context of the delay – court satisfied that the issuing of the letter of intention to deport was an attempt to clarify the his status and provide a further opportunity to make representations to the Minister in support of the application for leave to remain in the state - not satisfied that there are any substantial grounds upon which to consider a grant of leave to apply for judicial review - application to amend grounds – Somali national sought an alternative declaration that Because the Minister has not refused his application for a declaration of refugee status, that application remains outstanding and the applicant continues to reside lawfully in the state - submitted that this amendment should be granted on the basis that he at all material times understood from the letter giving him notice of the deportation that he was a person who had been refused refugee status - Minister maintained in correspondence that the two letters containing a reference to him as a failed asylum seeker were issued in error, and that the terms of settlement were also agreed on the basis of a mistake as to his status – argued that the original application for asylum remains extant and has not yet been determined - an amendment may be granted when this is required in the interests of justice - if the amendment amounts to a claim for entirely new relief, it may be refused - a delay in seeking leave to amend the grounds may also be relevant - argued that ORAC had no power under the provisions of the Refugee Act 1996 (as amended), to decline to process the claim for a declaration of refugee status -application to amend was extremely late and well outside the time limit applicable - an extension of time may be granted if there is good and sufficient reason for doing so – argued that the issue only crystallised on the receipt of the statement of opposition and the grounding affidavit - court is not satisfied that the issue raised in the proposed amendment was not an issue that could have been raised earlier- not a newly discovered facts sufficient to warrant an extension of time - not satisfied that the Somali national has adequately explained his failure to seek judicial review of the original decision - unfair to require the respondent to defend a challenge to a decision concerning an application for asylum which was dishonest in significant respects - the court is not satisfied that the proposed ground gives rise to a substantial ground upon which to grant leave.