Having same decision maker in asylum and subsidiary protection applications does not infringe rule against bias

Judicial review – telescoped hearing – Bangladeshi citizen challenging subsidiary protection regime – argued that the Refugee Applications Commissioner is not permitted to delegate the function of making a recommendation in respect of an application for subsidiary protection – refused asylum and applied for subsidiary protection - met and fell in love with a British-born national with dual citizenship of the United Kingdom and Ireland - he married her - as his wife is an EU citizen exercising her EU Treaty rights, he was given permission to be in the State while his formal application for residency based on his wife’s status is processed - Minister wrote to the applicant informing him of a new procedure for subsidiary protection applications under the 2013 Regulations - objection to the Refugee Applications Commissioner hearing the application for subsidiary protection and gave notice of their instructions to issue judicial review proceedings – refused subsidiary protection – complains of bias - Commissioner has made a negative first instance recommendation on his asylum application then acts as the decision maker in the application for subsidiary protection - Commissioner was not satisfied as to the applicant’s general credibility - such an adverse finding in respect of the applicant by the Commissioner is a bar to his subsequent processing of his application for subsidiary protection - the Commissioner, by appearing before the Refugee Appeals Tribunal, takes on an advocacy role and, while his function is not to defeat the appeal, he nonetheless presents a case and acts as a legitimus contradictor to the appeal - submitted that a person who takes an advocacy role against a person cannot make a decision on that person’s case at a subsequent stage in the international protection process - fair procedures and constitutional justice - independent and impartial tribunal - submits that a regime in which the body that finds against an asylum seeker, then takes on the role of advocate and defends its findings at an appeals tribunal before sitting again as the decision maker in the subsidiary protection application would be in breach of the principles of European law – argued that in so far as the 2013 Regulations permit the Commissioner to delegate his functions to his staff, such provision is invalid as it is achieved by unlawful use of s.3 of the European Communities Act 1972 which permits laws to be adopted by statutory instrument made by a Minister rather than by legislation made by the Oireachtas – separation of powers – principles and policies - independence of the Commissioner – Bangladeshi citizen failed to provide any evidence that the Commissioner has been or can be directed by any other body or authority as to what recommendation to make in respect of an application for subsidiary protection - a recommendation on subsidiary protection is a new jurisdiction conferred on the Commissioner to be carried out impartially - the right to apply for subsidiary protection is not divorced from the right to apply for asylum but is a complementary right - principle of procedural autonomy - in cases where breach of fundamental principles including bias is alleged, the Court of Justice has relied on the availability of judicial supervision to answer claims - where the legal system as a whole provides for the effective observance of rights guaranteed by EU law, that will be sufficient to ensure that fundamental rights are respected - the Commissioner has powers of delegation under the well-known Carltona Doctrine - no rule of European law requires separate persons to assess applications for asylum and subsidiary protection – no illegality arises because of the dual role of the ORAC – contemplated in EU law that the same decision maker may take both asylum and subsidiary protection decisions even though the subsidiary protection decision must, as a matter of law, follow a negative asylum decision - notwithstanding an earlier negative finding on asylum, it did not mean that the authorities had thereby decided the outcome of the subsidiary protection application - court rejects the argument that the involvement of a representative of the Commissioner as a legitimus contradictor during the asylum appeal process alters the balance in any way - EU law expressly permits the same decision maker to take both decisions, then the role played by the Commissioner in asylum appeals is legally irrelevant to the alleged bias or prejudgment which is said to arise from the duality in decision making - role played by the Commissioner at the tribunal is not an entrenchment of the decision taken at first instance – flaw in the applicant’s argument is that it perceives applications for subsidiary protection and asylum applications as separate matters requiring separate treatment - essence of an application for subsidiary protection is that it can only be presented by a person who does not qualify as a refugee - no entitlement to present an autonomous application for subsidiary protection - no bias issues arise where the same decision maker takes both decisions sequentially - whether Irish law prohibits the same decision maker to be involved in both processes - merits of a unified system - rules which permit the same decision maker for asylum and subsidiary protection do not offend the rule against bias because the forms of protections and their associated application procedures are intertwined and interdependent - no constitutional difficulty with administrative schemes which provide cascading solutions to problems and it is permissible for single decision makers to establish the facts and then rule in or rule out a suite of solutions which might suit - rule against bias or prejudgment in Irish law - no flaw or infringement of the rule against bias in this regime because the legal architecture for determining an application for international protection expressly contemplates a single decision maker for alternative solutions to a fear of harm - the findings of fact identified by the Commissioner in the asylum application are not a pre-judgment of the subsidiary protection application - the asylum decision as an intrinsic part of the decision making process with respect to an application for international protection and thus part of the judgment on an application for subsidiary protection - existence of prior negative findings is not a pre-judgment of the new application - the natural consequence of the connectedness between asylum applications and those for subsidiary protection - delegation of function - whether the Commissioner is entitled to delegate the function of making the recommendation – statutory interpretation - the Commissioner is permitted to delegate his functions in respect of subsidiary protection applications in the same way in which he is entitled to delegate his functions in respect of asylum matters – Regulations extend the Commissioner’s functions from asylum matters to asylum and subsidiary protection matters – no need for a referral to Europe.