Facts of the case:

The case concerns a female applicant from Sierra Leone who lodged an application for international protection on 28 May 2019 citing female genital mutilation, forced marriage, and religious persecution grounds. On the 29 November 2020 the application was rejected as manifestly unfounded by the International Protection Agency (IPA). The decision was notified to the applicant on 17 December 2020 and on the 24 December 2020 the International Protection Appeals Tribunal confirmed the IPA decision in terms of the review procedure specified in Article 23 of the International Protection Act, Chapter 420 of the Laws of Malta.

The applicant challenged the IPAT's decision and the automatic review procedure and claimed that these violate her right to a fair hearing in terms of the Constitution of Malta, the EU Charter of Fundamental Rights, and the European Convention on Human Rights.

Relevant legal provisions:

According to Article 23(1), (2) and (3) of the International Protection Act, a person seeking international protection in Malta shall be examined under accelerated procedures in accordance with this article when the application appears to be manifestly unfounded. Where the IPA is of the opinion, at whichever stage, that the application is manifestly unfounded, the Chief Executive Officer shall examine the application within three working days and shall, where applicable, decide that the application is manifestly unfounded. The decision shall immediately be referred to the Chairperson of the International Protection Appeals Tribunal who shall examine and review the decision of the IPA within 3 working days.

Arguments included in the opinion of the court:

• The court found it very strange that the applicant received a short letter dated 17 December 2020 while the grounds for the rejection were sent to the Minister. In this situation the IPAT was not acting as a tribunal but rather as a revisory body sui generis for which there is no appeal under the International Protection Act. The court did not consider this to be appropriate.
• The court did not agree with the conclusion reached by the Secretary of the IPAT that because the law was silent on whether the applicant has a right to appeal, then there was nothing holding the applicant from submitting an appeal. The court considered that in such an important [asylum] procedure the law ought to provide for such a right in an express manner, as procedure can never be implied, and Chapter 420 is very clear and detailed when describing the right to appeal.
• The court further noted that in the case of an application for refugee status, the phrase “civil rights” in Article 6 ECHR should not be given a restrictive interpretation. In the case of a refugee who is entitled to status based on the merits, there is nothing more important that obtaining this status so that he can exercise rights of a civil nature, which he cannot exercise in the event of a repatriation. The granting of refugee status is the source of the power to exercise a number of civil rights. At this stage one must not confuse the question of what constitutes a civil right and the question of whether the application for refugee status is well-founded. The Court is of the opinion that a decision by an authority (the IPAT), particularly in an accelerated procedure, on whether a person should be granted refugees status or repatriated to a state where possibly they cannot exercise their civil rights, falls under the classification of a civil right par excellence. Furthermore, the court noted that in the case of an application that is not processed under the accelerated procedure, the law provides for a rather detailed procedure to appeal the decision. Despite the fact that the authority (IPAT) is not a tribunal in the wider sense of the word, there is a strong element of an adversarial system which positions the IPA and the IPAT as quasi-judicial entities. Furthermore, the court notes that when one compares Article 6(1) ECHR and Article 39(2) of the Constitution, the constitution uses the words “civil rights or obligations”, therefore the court considers that the word “obligations” is not only addressed to the individual but also to the state when the latter fails to protect the fundamental human rights of the individual.
• The court referred to Article 7(10) of the International Protection Act which states that notwithstanding the provisions of any other law, but without prejudice to article 46 of the Constitution of Malta and without prejudice to the provision in article 4 of the European Convention Act the decision of the tribunal shall be final and conclusive and may not be challenged and no appeal may lie therefrom, before any court of law, saving the provision of article 7A. The court considered that in this part of the law the legislator anticipated the possibility that part of the law would be contested. Therefore, the court finds it rather anomalous that the applicant is not given the motivation for the decision of the IPAT so as to be able to regulate his own affairs. In the case of appeals to the IPAT where the application is not determined to be manifestly unfounded, the minimum guarantees offered by the Asylum Procedures Directive (APD) seem to be satisfied. The same cannot be said of the accelerated procedure. Independently of any other consideration, the Directive is adamant that even in the case of this procedure, the minimum guarantees of the rights listed in the APD are equally applicable. This is confirmed by Article 2 of the International Protection Act and also Article 3, which makes it amply clear that the “Act incorporates the obligations assumed by Malta under the Convention and its obligations under the Directives.”
• The court did not consider that the claim before it (that of a breach of fundamental rights) can be addressed in terms of the procedure in Article 469A of Chapter 12 of the Laws of Malta [judicial review of administrative action] when the deficiency in this case is intrinsically in the law.
• Therefore, it results that in the light of the obligations assumed by the Maltese state, the minimum guarantees offered by the APD [the Court erroneously cited the 2005 Directive], Article 12 were not adopted or transposed in the law in the case of the accelerated procedure in terms of Article 23 of the International Protection Act. The court  considered that these guarantees do ensure that the applicant is given a fair hearing and provide the applicant the opportunity to present his case according to law. Consequently, the court concluded that the applicant in this case was correct on the point relating to the constitutional nature of the claim.
• The court also examined the procedure in terms of Article 23(2) of the International Protection Act. In the case where the IPA finds that the application is manifestly unfounded, it should immediately refer the decision to the IPAT, which in this case is also referred to as an appeals tribunal. This reference is unilateral and automatic in nature and the applicant is not involved. The court expressed serious doubts whether the applicant is aware. The court considered that such a review required both parties to have the opportunity to present their views, as otherwise the IPAT may not be considered impartial.

Decision of the court:

• Article 23 of the International Protection Act, to the extent that it is not compatible with the right to a fair hearing, breaches the fundamental right of the applicant as provided for in Article 39(2) of the Constitution. There is no breach in terms of Article 32(a) of the Constitution.
• Article 23 of the International Protection Act, to the extent that it is not compatible with the right to a fair hearing, breaches the applicant’s fundamental rights (Article 39 of the Constitution and Article 6 of the European Convention on Human Rights).
• The court rejected the claim regarding Article 47 of the EU Charter of Fundamental Rights and abstained from taking further cognition of the claim regarding Article 13 of the ECHR.
• Rejected the claim of the applicant in relation to Article 32 of the Constitution.
• Ordered the IPAT to decide on the applicant’s case again, and before reaching its conclusion proceed in accordance with all the minimum guarantees in the APD.

The case was appealed before the Constitutional Court. The English summary of the judgment pronounced in the second appeal is available under Show more info above.