B.MJ.L and Others v Minister for Justice and Equality and Others

JurisdictionIreland
JudgeMr. Justice Cross
Judgment Date14 February 2012
Neutral Citation[2012] IEHC 74
CourtHigh Court
Date14 February 2012

[2012] IEHC 74

THE HIGH COURT

[No. 636 J.R./2011]
L (BMJ) & Ors [Democratic Republic of Congo] v Min for Justice & Ors
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED),
IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) AND
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

B. MJ. L., T. L. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, B. MJ. L.), L. L. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, B. MJ. L.) (DEMOGRAPHIC REPUBLIC OF CONGO)
APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S17(1)

ILLEGAL IMMIGRANT (TRAFFICKING) ACT 2000 S5(2)(A)

ILLEGAL IMMIGRANT (TRAFFICKING) ACT 2000 S5(1)(K)

IMMIGRATION ACT 1999 S3(1)

ILLEGAL IMMIGRANT (TRAFFICKING) ACT 2000 S591)(C)

ILLEGAL IMMIGRANT (TRAFFICKING) ACT 2000 S5

M (P) v MIN FOR JUSTICE UNREP HOGAN 28.11.2011 2011 IEHC 109

RSC O.84 R21(1)

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

RSC O.84

WHITE v DUBLIN CITY COUNCIL 2004 1 IR 545

JERRY BEADES CONSTRUCTION LTD v DUBLIN CORPORATION UNREP MCKECHNIE 7.9.2005 2005/32/6641 2005 IEHC 406

LENNON v CORK CITY COUNCIL UNREP SMYTH 19.12.2006 2006/34/7172 2006 IEHC 438

N (F) & ORS v MIN FOR JUSTICE 2009 1 IR 88

OBUSEH v MIN FOR JUSTICE UNREP CLARK 14.1.2010 2010/40/10214 2010 IEHC 93

O'DRISCOLL & GRATTAN D'ESTERRE ROBERTS v LAW SOCIETY OF IRELAND & SOLICITORS DISCIPLINARY TRIBUNAL UNREP MCKECHNIE 27.7. 2007 2007/48/10302 2007 IEHC 352

MURESAN v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 8.10.2003 2003/38/9156

IMMIGRATION ACT 1999 S3(11)

K (KI) v MIN FOR JUSTICE UNREP COOKE 25.11.2011 2011/29/7843 2011 IEHC 444

IMMIGRATION LAW

Judicial review

Leave - Substantial grounds - Refugee - Extension of time - Whether fourteen day time period applicable - Whether principle of judicial comity applicable - Whether time limits under O. 84 applicable - Whether application made within 6 months - Whether application made promptly - Whether applicant seeking to collaterally impugn validity of Refugee Appeals Tribunal by way of appeal - Whether applicant estopped from impugning validity of decision of Refugee Appeals Tribunal by applying for subsidiary protection - Subsidiary protection - Credibility - County of origin information - Whether respondent entitled to rely on adverse credibility findings - Whether respondent adequately analysed subsidiary protection application - Deportation - Time limit - Extension of time - Test to be applied - Whether new information submitted in relation to decision to deport - Whether merits of application sufficient to grant extension of time - Injunction - Whether deportation should be restrained pending conclusion of proceedings - Whether applicant could introduce new information in judicial review proceedings - TD v Minister for Justice [2011] IEHC 37 (Unrep, Hogan J, 25/1/2011), Jerry Beades Construction Ltd v Dublin City Council [2005] IEHC 406 (Unrep, McKechnie J, 7/9/2005), Lennon v Cork City Council [2006] IEHC 438 (Unrep, Smyth J, 19/12/2006) and KIK v Minister for Justice [2011] IEHC 444 (Unrep, Cooke J, 25/11/2011) followed - PM v Minister for Justice [2011] IEHC 409 (Unrep, Hogan J, 28/10/2011) not followed - In re Worldport (Ireland) Ltd [2005] IEHC 189 (Unrep, Clarke J, 16/6/2005) approved - White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545, Obuseh v Minister for Justice [2010] IEHC 93 (Unrep, Clark J, 14/1/2010), O'Driscoll v Law Society of Ireland [2007] IEHC 352 (Unrep, McKechnie J, 27/7/2007) and Muresan v Minister for Justice (Unrep, Finlay Geoghegan J, 8/10/2003) considered - Rules of the Superior Courts 1986 (SI 15/1986), O84 - Refugee Act 1996 (No 17), s 17 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Relief refused (2011/636JR - Cross J - 14/2/2012) [2012] IEHC 74

L (BMJ) v Minister for Justice and Equality

Facts: The applicants were a mother and her two daughters and nationals of the Democratic Republic of Congo and sought judicial review of decisions of the first respondent Minister refusing to grant the applicants refugee status, refusing the grant subsidiary protection to the applicants and refusing to make deportation orders. The applicants sought injunctive relief restraining their deportation. Problematic inconsistencies had been found in the applicant mother's account undermining her credibility. No extension of time had been sought for judicial review. No initial challenge had been made to the initial decision of the Refugee Appeals Tribunal. The respondent contended that the applicant was attempting to collaterally impugn the validity of the adverse Tribunal decisions by way of appeal. The applicant alleged inter alia that the Minister had erred in law and had arrived at decisions that were irrational and unreasonable.

Held by Cross J. that the Minister in his deportation decision had examined the full file and no new information was available. The Court was not of the view that the applicants substantive application had any merits and the applicant had not demonstrated by there should be an extension of time. The applicant did not have any basis in which to claim an injunction for the orders sought. The applicant had failed in his application for judicial review.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Cross delivered on the 14th day of February, 2012

1. Background
2

2 1.1 This is an application for leave for judicial review to take up and quash the decisions of the first named respondent (the Minister) to refuse:-

3

(a) a grant of refugee status to the applicants;

4

(b) to refuse a grant of subsidiary protection to the applicants; and

5

(c) to make deportation orders in respect of the applicants.

6

There was a further application for an injunction restraining the Minister from deporting the applicants pending determination of proceedings.

7

3 1.2 The applicants are a mother and her two daughters. They are nationals of the Democratic Republic of Congo (DRC). The first named applicant was born on 22 nd September, 1959, the second on 18 th August, 1995 and the third on 23 rd March, 2003. They used to reside in Kalamu, Kinshasa, DRC.

8

4 1.3 The applicants arrived in the State on 23 rdMay, 2008 and immediately sought asylum.

9

5 1.4 The first named applicant (unless otherwise clear "the applicant") filled out the usual questionnaire to the RAC detailing the reasons for leaving DRC. In essence she stated she joined the UDPS political party in 2004, was involved in canvassing support for the party in her local neighbourhood and that she participated in protest marches organised by the party in 2005, 2006 and 2007, distributing leaflets and carrying banners. She furnished I.D. and party membership documents. She claimed she was arrested on each occasion she marched and was detained for three days in 2005 and one day in 2006. She claimed that after a march on 19 th March, 2008, she was imprisoned in Makala Prison in Kinshasa for six weeks and that she was subject to brutality therein until she escaped which was procured through bribery by the good offices of her brother-in-law.

10

6 1.5 The applicant then was financed by the same brother-in-law to come to the State via France.

11

7 1.6 The RAC in his s. 13 report dated 10 th November, 2008, recommended that the applicant and her daughters be refused to asylum. He said that the COI reports for 2005 and 2006 showed UDPS members were persecuted and were prone to arbitrary arrest and detention but that the reports for 2007 and 2008 indicated treatment of UDPS members had improved significantly.

12

8 1.7 That decision was not subject to judicial review but the applicant appealed to the Refugee Appeals Tribunal by notice of appeal dated 10 th November, 2008, which was followed by an oral hearing on 6 th April, 2009 and a decision was dated 16 th May, 2009, which reaffirmed the recommendation of the Commissioner.

13

9 1.8 Prior to the decision of the RAT, the applicant furnished more COI documentation consisting of a newspaper article on the events of 19 th March, 2008 and also a medical report from SPIRASI.

14

10 1.9 The decision of the RAT refers to the various COI documentation including the SPIRASI letter and the newspaper article.

15

11 1.10 The RAT reiterated the view of the RAC that the COI information indicates that the treatment of UDPS members was significantly better in 2007 than it had been in 2005/2006 and concluded "while it remains possible that individual UDPS are victims of human rights abuses this would not be linked to the fact that they are members of that particular party".

16

12 1.11 The RAT then went on to indicate that there were a number of "problematic inconsistencies" with the applicant's account which claimed to undermine her credibility and thus questioned the legitimacy of her claim.

17

13 1.12 The decision of the RAT is of potential relevance though it is not itself the subject of any challenge, counsel on behalf of the applicant has argued that it was based upon irrational considerations and "polluted" the subsequent decisions of the Minister to refuse to grant asylum, and the later decisions in relation to subsidiary protection and deportation.

18

14 1.13 By letter of 22 nd June, 2009, the Minister refused to grant refugee status to the applicant and invited in the usual way applications for subsidiary protection and leave to remain. This is the first decision in respect of which the applicant seeks leave for judicial review.

19

15 1.14 On 9 th July, 2009, the applicants sought subsidiary protection and leave to remain. By letter of 13 th April, 2011, the applicant was advised that the subsidiary protection application was refused and I shall deal with the basis of...

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