Bondo v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 09 November 2012
• Neutral Citation: [2012] IEHC 454
• Docket Number: [No. 800 J.R./2011]
• Court: High Court
• Date: 09 November 2012

Bondo v Min for Justice

JUDICIAL REVIEW

BETWEEN

LUBIKA MADELINE BONDO

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENT

[2012] IEHC 454

[No. 800 J.R./2011]

THE HIGH COURT

Judicial Review - Asylum - Deportation - Application for subsidiary protection refused - Country of origin information - Risk of serious harm - Protection from serious harm - Credibility

Facts: The applicant was originally from the Democratic Republic of Congo. She applied for asylum upon entering the country in September 2007 but her application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected. The applicant then made a claim for subsidiary protection on the basis that there was a risk of serious harm if she was returned to her country of origin but this was also rejected. Leave for judicial review was subsequently sought challenging the validity of that decision.

In the applicant's application for subsidiary protection, she clarified that the serious harm she would face would be "death penalty or execution" and/or "torture of [sic] inhuman and degrading treatment or punishment of an applicant in the country of origin" as a result of her involvement in political activity in opposition to the governing establishment. She further pointed out that the country of origin information for the Democratic Republic of Congo was overwhelmingly negative. The application was rejected as it was decided that the applicant's version of events was implausible and as such, the negative country of origin information could not assist the application on its own. The applicant contended that the conclusion reached was irrational as the country of origin information clearly demonstrated there was inadequate protection from serious harm available.

Held by Mac Eochaidh J that in order for the applicant to have succeeded in her application for subsidiary protection, firstly she would have had to demonstrate from her own personal circumstances and experiences why there was a risk of serious harm as described and then established whether there was adequate protection available. The decision maker was entitled to reject an application where the risk of serious harm hadn't been established through the credibility of personal experiences, even where the adequacy of protection from the serious harm as contended was in doubt as the second issue was moot as a result. In the present case, it had been decided that the personal experiences alleged by the applicant were implausible and no issue had been taken with this by the applicant. As such, only a small element of the conclusion was being challenged and when read as a whole, it was held to be rational.

It was further held that it was open to an applicant to establish a risk of serious harm from general as opposed to personal circumstances in which case the country of origin information would be important. However, the standard of proof from relying on such material alone would be much higher. In this case, the applicant had not pursued this course of action.

Application for relief refused.

EEC DIR 2004/83

EUROPEAN COMMUNITIES ELEGIBILITY FOR PROTECTION REGULATIONS 2006 SI 518/2006

EEC DIR 2004/83 ART 15

EEC DIR 2004/83 REG 2

EEC DIR 2004/83 ART 15(C)

ELGAFAJI v STAATSSECRETARIS VAN JUSTITIE C-465/07

EEC DIR 2004/83 ART 15(C)

EEC DIR 2004/83 ART 15(A)

EEC DIR 2004/83 ART 15(B)

EEC DIR 2004/83 ART 2(E)

EEC DIR 2004/83 ART 7(2)

EEC DIR 2004/83 ART 15(A)

EEC DIR 2004/83 ART 15(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3(B)

N A v UK UNREP ECHR 17.7.2008 APP NO 25904/07

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 REG 5(1)(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006 REG 5(2)

TABI v REFUGEE APPEALS TRIBUNAL UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

1 JUDGMENT of Mr. Justice Mac Eochaidhdelivered on the 9th day of November 2012

2 1. The issue in this case is whether the respondent minister acted irrationally by finding that protection from serious harm was available to the applicant in her home country notwithstanding overwhelmingly negative country of origin information concerning the Democratic Republic of Congo.

3 2. Ireland is required to provide protection to non-EU nationals where the person concerned would face a real risk of suffering serious harm if returned to his or her country of origin: see Council Directive 2004/83/EC ('The Qualification Directive') 2003 and S. I. 518 of 2006 ('The Protection Regulations').

4 3. Serious harm is defined in Article 15 of the Qualification Directive as:

5 a "(a) death penalty or execution; or

6 (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

7 (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

8 This definition is reproduced in Regulation 2 of The Protection Regulations. No claim in respect of Art 15 (c) was ever made by the applicant.

9 4. The ECJ has addressed the distinction between the types of harm in respect of which protection may be sought in Case C-465/07 on 17 ^th February, 2009, Elgafaji v. Staatssecretaris van Justitie. The Dutch referring court wished to know whether a person seeking protection within the meaning of Article 15(c) of the Directive was required to produce evidence that he or she was specifically targeted by reason of factors peculiar to his or her circumstances. The Court of Justice said as follows:

10 2 "31. In order to reply to those questions, it is appropriate to compare the three types of 'serious harm' defined in Article 15 of the Directive, which constitute the qualification for subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces 'a real risk of [such] harm' if returned to the relevant country.

11 32. In that regard, it must be noted that the terms 'death penalty', 'execution' and 'torture or inhuman or degrading treatment or punishment of an applicant in the country of origin', used in Article 15(a) and (b) of the Directive, covers situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.

12 33. By contrast, the harm defined in Article 15(c) of the Directive as consisting of a 'serious and individual threat to [the applicant's] life or person' covers a more general risk of harm.

13 34. Reference is made, more generally, to a 'threat... to a civilian's life or person' rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of 'international or internal armed conflict'. Lastly, the violence in question which gives rise to that threat is described as 'indiscriminate', a term which implies that it may extend to people irrespective of their personal circumstances.

14 35. In that context, the word 'individual' must be understood as covering harm to civilians irrespective of their identity, by the degree of indiscriminate violence characterising the armed conflict taking place - assessed by the competent national authorities before which an application for subsidiary protection is made, or by the court of a Member State to which a decision refusing such an application is referred - reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred to in Article 15(C) of the Directive."

15 5. The Court, at paragraph 38 of its judgment, noted that the harm defined in Article 15(a) and (b) "requires a clear degree of individualisation".

16 Article 2 (e) of the Qualification Directive prescribes eligibility for subsidiary protection. In addition to demonstrating a real risk of suffering serious harm (as defined in Article 15) the applicant must establish that he or she "is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country"

17 6. The Qualification Directive explains what is meant by the words "the protection of that country". Article 7, entitled 'Actors of Protection', says "Protection can be provided by (a) the State; or (b) parties or organisations controlling the State or a substantial part of the territory of the State". Article 7(2) provides that "Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection."

18 7. It seems to me that where an applicant for subsidiary protection fails to establish, for whatever reason, that he or she faces a real risk of serious harm, then no issue arises as to whether protection from the risk of serious harm is available in the home country. Thus for example where an applicant, invoking only Article 15(a) and (b), claims to be personally in fear of a powerful warlord in a country which has a deficient legal system and corrupt politics, it would not be enough for her to rely on general facts demonstrating that her country of origin is degraded, unless the level of degradation was at an appropriate level of intensity (see paragraph 11 below for relevant case law). If it transpires that she fabricated the story about the warlord, it would be lawful to declare her ineligible for subsidiary protection notwithstanding even serious deficiencies in...