CNK v The Minister for Justice & Equality, [2016] IEHC 424 (2016)

Docket Number:2015 379 JR
 
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THE HIGH COURT

JUDICIAL REVIEW[2015 No. 379 JR]

BETWEEN

  1. N. K.APPLICANTAND

THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT

JUDGMENT of Mr. Justice Colm MacEochaidh delivered on the 25th day of July, 2016

1. This is an application for leave to seek judicial review of the Minister’s decision refusing to revoke the deportation order of the 8th November, 2011. It is required to be made in accordance with the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended). Substantial grounds as to illegality of the decision must be made out to attract a grant of leave.

2. The “examination of file” supporting the original deportation order is exhibited by the applicant. It records that the applicant applied for asylum in Ireland on the 7th July, 2004, under the name C.K.N. giving a date of birth of the 18th March, 1976. The EURODAC fingerprint database revealed that he had sought asylum in France on the 13th November, 2003, under the name K. N. with a date of birth of the 18th March, 1976. He also sought asylum in the United Kingdom on the 16th February, 2011, under the name C. N. with a date of the birth of the 9th November, 1982. The applicant was removed to Ireland from the United Kingdom in March 2011. He was then apprehended in Belfast on the 18th June, 2011. The officials were not in a position to say how long the applicant had been in the State having regard to the movements outside the State of which they were aware. It was recorded that the applicant was single with no known family connections in the State; his only connection with the State was via his application for asylum. No representations were received from or on behalf of the applicant. The prohibition of refoulement application in s. 5 of the Refugee Act 1996 was addressed having regard to the content of his asylum application in view of the fact that he made no representations regarding the proposal to be deported. The decision records that during the course of the assessment of his asylum application he decided that he would transfer to France. He failed to cooperate with this effort and absconded.

3. The French authorities extended the time within which to affect transfer to France but that expired on the 9th June, 2006. Ireland then proceeded with his asylum application. The applicant failed to attend for interview and his application was deemed to be withdrawn. O.R.A.C. made a recommendation that he should not be declared a refugee. Correspondence addressed to him containing information about these developments was returned to O.R.A.C. marked “unclaimed.” He was informed of the proposal to make a deportation order and invited to make representations but did not do so.

4. A take-back request was received from the United Kingdom, and he was duly transferred from the United Kingdom on the 30th March, 2011, in accordance with Dublin II Regulation.

5. The applicant subsequently moved from Ireland to the United Kingdom and as a result Ireland received a second take-back request on the 22nd June, 2011. Again Ireland agreed to take the applicant back.

6. Notwithstanding the fact that no representations had been made in relation to the proposal to deport, country of origin information was sourced and the security and political situation of the country was described. Information concerning the position of failed asylum seekers returning to the Democratic Republic of Congo was included in the recommendation. A U.N.H.C.R. report was the source of a finding that a Congolese human rights organisation with an office at the airport was closely monitoring the position of failed returning asylum seekers and the N.G.O. was reported as saying:-

“…they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum-seekers had to pay some money to the police.”

7. The officials concluded that repatriating the applicant to DR Congo is not contrary to s. 5 of the Refugee Act 1996. The Minister duly made the order on the 8th November, 2011.

Application for Revocation

8. Burns Kelly Corrigan solicitors made application on the 1st May, 2015, for revocation of the deportation order. The application notes the applicant’s interest in applying to re-enter the asylum process under s. 17(7) of the Refugee Act and also to apply for subsidiary protection. The letter notes that the applicant did not make submissions on the proposal to deport because he was not in the State at the time. The principle case advanced on behalf of the applicant was that he faced a risk as a failed asylum seeker if returned to the Democratic Republic of Congo.

The Minister’s Decision

9. The Minister’s official summarises the case made in favour of revocation and expressly refers to the report entitled “Unsafe Return Refoulement of Congolese Asylum Seekers” dated 24th November, 2011, by Ms. Catherine Ramos. The official’s text addressing this issue is as follows:-

“It is noted that the applicant’s solicitors have stated that the deportation order signed in respect of him should be revoked as they state that the applicant is at risk of harm if returned to DR Congo as he will be a failed asylum seeker. Extensive country of origin information has been submitted on the applicant’s behalf, which has been read and considered.

Reference was made to the alleged unsafe return of failed asylum seekers to DR Congo, citing a report entitled “Unsafe Return Refoulement of Congolese Asylum Seekers”, dated 24th November, 2011 and compiled by Ms. Catherine Ramos, a trustee of a charity called Justice First which can be found at the following link: Unsafe Return Refoulement of Congolese Asylum Seekers. A Report compiled by Catherine Ramos (24/11/2011) http://justicefirst.org.uk/wp-content/uploads/UNSAFE-RETURN-DECEMBER-5TH-2011.pdf

However, the UK Home Office state, in a document entitled “Democratic Republic of Congo (DRC) Policy Bulletin 2/2014” (which can be found at: United Kingdom: Home Office, Democratic Republic of Congo (DRC): Country Policy Bulletin, 22 October 2014, DRC Policy Bulletin 2/2014, available at: http://www.refworld.org/docid/544a19fe4.html) 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 seriously victimised on the grounds that they have, in seeking asylum, betrayed their country.”

The Home Office goes on to state:

The “Unsafe Return [1]” 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 [1]”, entitled: “Unsafe Return 2 Report”. On its web site Justice First describe 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...

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