ANK v Minister for Justice, Equality and Law Reform
 IEHC 425
THE HIGH COURT
Mac Eochaidh J.
 No. 378 JR
Asylum, Immigration & Nationality – S. 3 (11) of the Immigration Act, 1999 – Revocation of deportation order – Failed asylum seeker – Fear of persecution – Audi alteram partem
Facts: The applicant sought leave to seek judicial review of the decision of the first named respondent for its refusal to revoke a deportation order made against the applicant. The applicant contended that the first named respondent had used certain information from the United Kingdom in its decision without notice to the applicant and thus, he was left with no opportunity to present his views concerning that piece of information. The applicant contended that there was sufficient country of origin information that supported his arguments that he would be meted out with harsh and inhuman treatment in the country of origin if he were to return as a failed asylum seeker.
Mr. Justice Mac Eochaidh refused to grant leave to the applicant. The Court, in line with the principles laid down in , held that the there were limited grounds under which a challenge could be made to a subsequent decision to refuse to revoke a deportation order. The Court, while following the dicta of Cooke J. in , held that the duty of the first named respondent under s. 3(11) of the Immigration Act, 1999 was considered the reasons put forward by the applicant and satisfied himself that there existed no new circumstances that had arisen since the making of the deportation order. The Court held that the first named respondent had no obligation to give an extensive reasoning for use of materials under s. 3(11) of the Act of 1999 to the applicant. The Court held that the decision of the first named respondent was clear, cogent and rational, and it explicitly set out the reasons for rejecting the reports forwarded by the applicant as those reports were unreliable and better information on the fate of the failed asylum seekers was available to the decision-maker. The Court observed that unless there was a manifest error of law in the decision of the first named respondent, the Court would not attempt to intervene in the decision of the first named respondent.
The applicant applies for leave to seek judicial review of a decision of 12th June, 2015, made by the respondent refusing to revoke a deportation order made on 8th March, 2011.
The applicant has exhibited the examination of file under s. 3(11) of the Immigration Act, 1999, which records the decision making process in respect of the revocation application. That text records facts which form the basis of the following description of the relevant facts.
The applicant was born in 1982 and arrived in the State in August, 2008, and sought asylum. His asylum application was rejected at first instance and on appeal. A subsequent application for subsidiary protection was unsuccessful and the Minister made a deportation order on 8th March, 2011. Following further representations the order was affirmed on 3rd October, 2011.
Application to re-enter the asylum system was refused ultimately by letter of 19th March, 2013. In that application it was contended that a document entitled ‘Unsafe return refoulement of Congolese asylum seekers’ supported the claim that it was unsafe to return their asylum seekers to the Democratic Republic of Congo.
Litigation ensued in relation to the unsuccessful application to re-enter the asylum process. Those proceedings were struck out and the Minister undertook to withdraw the decision of 7th November, 2013, refusing the applicant's request for revocation of his deportation order and facilitating new representations on the revocation application. Further submissions were made in respect of the revocation application on 28th February, 2015, which asserted that returned asylum seekers faced the risk of persecution.
It was found that it had not been demonstrated that any new elements or findings had arisen or been presented that would warrant A.N.K.'s readmission to the protection process. Notification issued subsequently that the application for readmission had been refused. The separate request to the Minister under Section 3(11), Immigration Act, 1999, as amended – 28/04/2015 was addressed as follows:-
‘As mentioned above, reliance was placed by Burns Kelly Corrigan on the original Unsafe Return Report by Catherine Ramos, of an organisation called Justice First, published in November, 2011 (cited by them in the 3(11) application of 21/11/2012) and also her follow-up report published in October 2013, written in response to criticism of the first document by the UK Home Office. As summarised up by Burns Kelly Corrigan, these reports concluded that, inter alia:
• Since 2006, the UKBA hypothesis that it is safe to return people is unsound.
• There is no effective monitoring of those refouled and unsuccessful asylum seekers fall outside the mandate of the UNHCR. NGOs and the UN cannot access the airport and are not able to “witness.” arrests.
• When inhuman and degrading treatment has been reported to NGOs, this information has not been acted on nor shared and is being used for “information” only. Returnees who have been arrested and subjected to inhuman and degrading treatment are frightened to approach NGOs, which, they believe, are being monitored by the state security services. This belief is reinforced by the death of Floribert Chebeya, President of Voix des San Voix.
• A policy exists to punish asylum seekers suspected of complaining about ill-treatment and the lack of human rights in the DRC, as they are betraying their country and the President.
• Travel documents identity failed asylum seekers and therefore places them at further risk on return … (being) suspected of having left on a false passport, an imprisonable offence.
• Reporting by returnees of instances of inhuman and degrading treatment to the British Embassy is unrealistic. The Embassy is not easily accessible to people without money or transport. At the end of the road where the Embassy is situated there is a manner military road block. Congolese G4S are on duty at the Embassy's reception windows.
Unsafe Return Refoulement of Congolese Asylum Seekers. A Report compiled by Catherine Ramos (24/11/2011)
Unsafe Return II – Compiled by Catherine Ramos (03/10/2013)
As additional support for the above points, Burns Kelly Corrigan cite two documents researched by the Refugee Documentation Centre, a UK Home Office DRC country of origin information report (09/03/2012) and a report entitled “Freedom from Fear”: The treatment of refused Congolese Asylum seekers (04/06/2012).
In its document entitled “Democratic Republic of Congo (DRC) POLICY BULLETIN 2/2014”, referring, in the first instance to the 2011 report and then the 2013 report, the UK Home Office states that “The report was based on investigations undertaken by Ms. Ramos, including visits to Kinshasa, of the experiences of 14 enforced and three voluntary Congolese returnees in the period 2006 to 2011. It alleges that enforced and voluntary returnees to DRC are routinely detained, raped, tortured and generally serious victimised on the grounds that they have, in seeking asylum, betrayed their country”
However, the Home Office goes on to state:
“The “Unsafe Return ” report was considered and its recommendations addressed in the DRC Country Policy Bulletin 1/2012 published November 2012 (CPB 1/2012). The bulletin concluded that the report, when considered in the totality of country information, did not demonstrate that FAS per se were at risk of ill treatment on return to the DRC and therefore did not support the report's recommendation that the Home Office needed to revise its policy on returns to the DRC.”
The policy Bulletin notes that “On 8 October 2013 Justice First published a follow up report to ‘Unsafe Return ’, entitled: ‘Unsafe Report 2 Report’. On its web site Justice First describes this report as ‘The Unsafe Return 2 ‘updates the original report by Catherine Ramos, which documents the post return experience of 17 Congolese men and women who were forcibly removed to DR Congo from the UK between 2006-2011. Eleven of these were clients of Justice First.’
The report refers to anonymous allegations of mistreatment and consequently it has not been possible to verify the identities of those making the claims, nor to establish any substance to these. This anonymous approach for allegations of mistreatment was criticised in the country guidance case of BK and in other country CG cases.”
The Policy Bulletin states that:
‘The Home Office has considered the Unsafe Return 2 report and concluded that it provides no new evidence. It has the same flaws as the original Unsafe Return report, as found by the High Courts of England and Wales (7.3.1).
The author has no experience or training in the subject areas which she is commenting on and has approached the issue from an emotive basis, with no attention to due reporting techniques. The author has accepted the stories from applicants/returnees, their families and lawyers without validating the evidence to support their allegations. She does not accept the findings in the country guidance case for the ... (03 December 2008) that ‘In all but one case those whose asylum claims have been traced – disclose that they were persons
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