Minister’s refusal to consider subsidiary protection application in the absence of asylum application was lawful

O'Donnell J (nem diss): Judicial review – applied for subsidiary protection - he had not previously applied for refugee status - resolutely contended that he should not be obliged to apply for and be refused refugee status before applying for or seeking subsidiary protection - Minister refused to consider the application for subsidiary protection because it did not comply with the Irish regulations, which provided that in order to be eligible for subsidiary protection, an applicant must first have been refused refugee status - unnecessarily complicated statutory regime for the consideration and judicial review of applications for international protection - applications for refugee status are decided or processed through the office of the Refugee Applications Commissioner and applications for subsidiary protection are dealt with by the Minister - insisted that he was entitled to have his subsidiary protection application decided separately, and without going through what he considered to be a pointless application for refugee status - not apparent what practical benefit would be achieved - granted leave to seek judicial review - legality in European Union law of the two stage procedure provided for by Irish law - commenced separate plenary proceedings challenging the constitutionality of that procedure - court refused the application for judicial review, holding that it was permissible to require an applicant to establish that he was not entitled to refugee status as a precondition to any application for subsidiary protection – Court refused the State defendant’s motion to strike out the plenary proceedings – Minister contended that the applicant was bound by legislation to bring proceedings by way of judicial review - both decisions were appealed to the Supreme Court -court indicated that he should be entitled to amend the judicial review proceedings to include the constitutional challenge - done by consent - referred to the European Court of Justice the question whether EU law permitted a member state to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law - ECJ answered that EU law does not preclude a national procedural rule under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the application for refugee status and the application for subsidiary protection at the same time, and, second, the national procedural rule does not give rise to a situation which the application for subsidiary protection is considered only after an unreasonable length of time - only question outstanding was the application of the ruling of the ECJ to the facts of the judicial review proceedings – argued that the burden of the decision of the ECJ was that Irish law was not compliant with European Union law because it did not permit for application for refugee status and application for subsidiary protection to be made at the same time - application had been or was likely to be considered only after unreasonable delay and that he was therefore entitled to damages - serve a useful purpose since it would have the consequential effect that his original application would still be extant, and this in turn would mean that a deportation order which had been made in the interim would become invalid - implicit in his approach that he accepts that he cannot obtain the original relief of certiorari of the Minister’s refusal, at least on the grounds upon which it was originally sought - implicit in his approach that he contends that it is permissible for the Court to make an order of certiorari and quash the ministerial refusal not on the grounds sought, but rather on the apparent flaws in the legal regime as identified in the proviso to the determination of the ECJ - even if it could be said that the legal regime in 2009 was in some way defective in not making provision for an application for both refugee status and subsidiary protection at the same time, he never made such an argument - could not have made such an argument because factually he was not in a position to do so - neither he nor his representatives had sought to make a simultaneous application for refugee status and subsidiary protection - not at all apparent that the legal regime in 2009 would not have permitted some form of ad hoc simultaneous application if that was what he truly sought - not possible to say definitively whether or not Irish law precluded a simultaneous application - the fundamental fact that the matters now relied on were not properly part of the proceedings or the determination of the High Court which is the subject matter of this appeal.