C. C. and Others v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 19 April 2012
• Neutral Citation: [2012] IEHC 143
• Judgment citation (vLex): [2012] 4 JIC 1902
• Court: High Court
• Date: 19 April 2012

[2012] IEHC 143

THE HIGH COURT

[No. 862 J.R./2011]

C (C) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

C. C. AND A. P., C. C. C. (AN INFANT SUING BY HER FATHER AND NEXT FRIEND C. C.) AND CL. C. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND C. C.)

APPLICANTS

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

O (OC) v MIN FOR JUSTICE UNREP COOKE 22.11.2011 2011/43/12302 2011 IEHC 441

O (N) v MIN FOR JUSTICE UNREP RYAN 14.12.2011 2011/13/12250 2011 IEHC 472

EEC DIR 83/2003 ART 4(1)

REFUGEE ACT 1996 S11

DONEGAN v DUBLIN CITY COUNCIL & ORS 2012 2 ILRM 233 2012/9/2558 2012 IESC 18

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

HOUSING ACT 1966 S62

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

O.84 r21(1)

REFUGEE ACT 1996 S5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5 (1)(B)

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

IMMIGRATION LAW

Subsidiary protection

Deportation - Substantial grounds - European Union law - Whether directive adequately transposed - Whether judicial review constituted effective remedy - Whether respondent properly considered applications - Whether decisions proportionate - Whether decisions reasonable - Whether stateable grounds of review - Whether country of origin information properly considered - Whether alleged incident of violence constituted inhuman or degrading treatment or punishment - Whether allegations constituted personal risk - Whether internal relocation possible - Whether international protection needed - BJSA v Minister for Justice [2011] IEHC 381 (Unrep, Cooke J, 12/10/2011), OCO v Minister for Justice [2011] IEHC 441 (Unrep, Cooke J, 22/11/2011), NO v Minister for Justice [2011] IEHC 472 (Unrep, Ryan J, 14/12/2011), PM v Minister for Justice [2011] IEHC 409 (Unrep, Hogan J, 28/10/2011) and HID v Refugee Applications Commissioner [2011] IEHC 33 (Unrep, Cooke J, 9/2/2011) followed - Donegan v Dublin City Council [2012] IESC 18 (Unrep, SC, 27/2/2012) and Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Refugee Act 1996 (No 17), s 5 - Directive 2004/83/EC, art 4.1 - Leave refused (2011/862JR - Cooke J - 19/4/2012) [2012] IEHC 143

C(C) v Minister for Justice and Equality

1 1. The first and second named applicants are nationals of Malawi and the parents of the two minors in these proceedings. The second named applicant ("the mother") arrived in the State in April, 2008 with her daughter, the third named applicant ("the daughter"). The first named applicant ("the father") arrived some months later. The fourth named applicant ("the son") was born in the State on 23 ^rd July, 2008, but is not an Irish citizen.

2 2. An application for asylum on the part of the father was the subject of a negative recommendation in a report under s. 13 of the Refugee Act 1996, dated 14 ^th November, 2008. The negative recommendation was reaffirmed on appeal by a decision of the Refugee Appeals Tribunal dated 19 ^th November, 2009.

3 3. An application for asylum was also made by the mother and her daughter was included in it. This too was the subject of a negative recommendation in a s. 13 report dated 23 ^rd April, 2008, which was reaffirmed by the Tribunal on appeal in a decision dated 19 ^th November, 2009, by the same Tribunal member.

4 4. On 19 ^th February, 2010, an application was made to the respondent for subsidiary protection on behalf of the father and a separate application was made on behalf of the mother and daughter. On 21 ^st October, 2009, an application for subsidiary protection was made on behalf of the son. Submissions were also made under s. 3 of the immigration Act 1999, for leave to remain on behalf of all applicants.

5 5. By letter dated 12 ^th May, 2011, the father was informed that the Minister had determined he was not eligible for subsidiary protection. The letter was accompanied by a memorandum setting out the analysis of the application and the reasons for the determination signed by an Assistant Principal of the Department of Justice dated 10 ^th November, 2011. Similarly, by letter dated 12 ^th May, 2011, the mother and daughter were informed of the negative determination of their application and furnished with a similar memorandum signed by the same Assistant Principal dated 10 ^th May, 2011. On 11 ^th August, 2011, deportation orders were made in respect of the applicants and were communicated to them accompanied by memoranda headed "Examination of file under Section 3 of the Immigration Act 1999", setting out the reasons for the making of the orders.

6 6. In this proceeding the applicants seek leave to apply for judicial review of the decisions determining that they are not eligible for subsidiary protection and of the decisions to make the deportation orders.

7 7. Before addressing the particular grounds which are sought to be relied upon as the basis for the grant of leave it is useful to summarise the factual background which was relied upon by the applicants, both in respect of the claim for asylum and the applications for subsidiary protection.

8 8. The daughter was born in Malawi on 2 ^nd March, 2007. The second named applicant's father was said to be a wealthy and influential businessman who had been diagnosed as HIV positive. In 2008 he is said to have told his daughter and son-in-law that he had been advised by a witch doctor that in order to cure his condition he would have to have consensual sex with a virgin in his own bloodline. They say he then brought pressure to bear on them to permit this with his granddaughter, the third applicant. The second named applicant claimed that she had been repeatedly abused by her father as a child and that this had continued until she was twelve or fifteen years old. (Different ages are given by her in the papers before the Court).

9 9. The father claimed to have been attacked and beaten by six men whom he said he recognised as acquaintances of his father-in-law. The first named applicant arranged for his wife and daughter to leave the country to get away from the father-in-law and he himself relocated within Malawi at a distance of 320 kilometres. He obtained work as a bus driver but on returning from work one evening he discovered that his house had been vandalised and he was informed by neighbours that a car with the name of one of his father-in-law's companies had been seen driving away. He claims that he then fled Malawi as a result.

10 10. In the statement of grounds a total of sixteen grounds are proposed to be relied upon some of which relate to the challenges to the subsidiary protections decisions, some to the deportation orders and some appear to be common to both. It is clear to the Court, however, that a number of the grounds seek to raise issues of law which have been found to be untenable in existing judgments of the High Court and do not therefore require to be dealt with again. Other grounds are formulated in such general terms and without any obvious connection to specific alleged defects, flaws or illegalities in any of the challenged decisions so as to be incapable of constituting the basis of an order granting leave.

11 11. Grounds 1, 2 and 3 are directed at the proposition that the European Communities (Eligibility for Protection) Regulations 2006 ("the 2006 Regulations") incorrectly or inadequately implement in Irish law the provisions of Council Directive 2004/83/EC of 29 ^th April, 2004 ("the Qualifications Directive") in that the Regulations fail to replicate the sentence in Article 4.1 of the Directive where it is stated that it is the duty of the Member States to assess the relevant elements of a claim to international protection in "co-operation with the applicant". The legal issue thus raised has been dealt with by the High Court in a number of judgments. (See, for example, B.J.S.A. (Sierra Leone) v. Minister for Justice and Equality & Ors (Unreported, 12 ^th October, 2011), O.C.O v Minister for Justice and Equality (Unreported, High Court, Cooke J. 22 ^nd November 2011), O. v Minister for Justice and Equality ( Unreported, High Court, Ryan J. 14 ^th December 2011)..

12 12. Article 4.1 of the Directive refers to the "application for international protection" which encompasses both the application for asylum and any subsequent application for subsidiary protection. The element of "co-operation" is supplied by the interview of the applicant which takes place under s. 11 of the Refugee Act 1996 and, where applicable, by the further re-examination of the application at an oral hearing on appeal before the Tribunal. Quite apart from the absence of any legal basis for this ground, in the present case no particular "co-operation" that ought to have occurred in the examination of the subsidiary protection application has been identified as the basis of the alleged illegality of the decisions. No indication has been given to the Court as to what different decision would necessarily have been reached by the Minister if the unspecified "co-operation" had, in fact, occurred. No arguable ground is therefore raised under these headings.

13 13. Grounds 4, 5 and 11 raise in different ways the claim that there is no "effective remedy" available against a negative determination of an application for subsidiary protection. This ground has also been found to be untenable in a number of judgments of the High Court. ( B.J.S.A. (Sierra Leone) v. Minister for Justice and Equality & Ors (Unreported, High Court, Cooke...