D.M.K.K. (DRC) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] IEHC 764 |
| Docket Number | [2015 No. 380 J.R.] |
| Court | High Court |
| Date | 14 December 2017 |
[2017] IEHC 764
THE HIGH COURT
JUDICIAL REVIEW- ASYLUM LIST
Stewart J.
[2015 No. 380 J.R.]
AND
Asylum, Immigration & Nationality - S. 17(7) of the Refugee Act, 1996 - Re-admittance to the asylum process - Deportation order - Danger of persecution - Risk of refoulement
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent for refusing the applicant's application for re-admittance to the asylum process u/s. 17(7) of the Refugee Act, 1996. The applicant contended that certain aspects of the asylum process were in breach of fair procedures and natural justice. The applicant argued that the first named respondent failed to address the representations and new evidence made on behalf of the applicant, which clearly showed how the failed asylum seekers were treated on their return to the country of origin.
Ms. Justice Stewart granted an order of certiorari to the applicant and quashed the decision of the first named respondent. The Court held that the decision maker did not adequately deal with the country of origin information furnished on behalf of the applicant. The Court opined that there had been over reliance on the decision of the UK's upper tribunal namely, B.M. and Ors (returnees - criminal and non-criminal) (CG) [2015] UKUT 293 without disclosing the intention to rely on that decision to either the applicant or his legal advisor. The Court held that the documents submitted by the applicant post-dated the decision of the original asylum process and those documents could constitute new evidence which mandated the first named respondent to re-admit the applicant to the asylum process. The Court also ruled that the burden of proof which the applicant had to overcome in s.17(7) application was not very onerous.
The applicant currently before the Court seeks, inter alia, an order of certiorari quashing the decision of the respondent refusing his application for re-admittance to the asylum process under s. 17(7) of the Refugee Act 1996 and declarations that certain aspects of the asylum process are in breach of European law. Leave was granted by MacEochaidh J. on 6th July, 2015. Other points in the case were adjourned by agreement until the Court of Appeal handed down its judgment in N.M. (DRC) v. Minister for Justice, Equality and Law Reform [2016] IECA 217. That judgment was delivered on 14th July, 2016, and will be addressed in the submissions below.
The applicant was born in 1978 and is a national of the Democratic Republic of Congo (DRC). He arrived in this jurisdiction on 4th June, 2009, and sought asylum as an Angolan/Cabindese national on grounds of persecution for political opinion. He alleged that he had been kidnapped in October, 2007, detained for 14 months and repeatedly beaten by armed men, who believed he was in possession of documents relating to the Cabindan organisation. His wife and first-born son arrived in the State in 2012 and are currently in the process of applying for subsidiary protection. He states that the couple have had two more children since then. No applications have been made on their behalf. A deportation order was issued in respect of the applicant on 29th November, 2013, following the failure of his application for asylum. He then used a valid DRC passport to secure a UK visa. The UK Border Agency has since informed the authorities in this jurisdiction that the applicant's fingerprints matched an individual of Congolese nationality who had been issued a multi-visit business visa.
Subsequent to the failure of his asylum application, information came to the applicant's attention that, due to deteriorating conditions in the DRC, he would be in danger of persecution if returned there by reason of his status as a failed asylum seeker. This information included two reports compiled by a Ms. Catherine Ramos, entitled 'Unsafe Return'. On foot of these reports, the applicant submitted an application on 28th April, 2015, for re-admittance to the asylum process under s. 17(7). This was refused on 25th June, 2015.
Michael Conlon SC, with Paul O'Shea BL, submit on behalf of the applicant that the Ramos reports constitute new evidence within the meaning of the 1996 Act. He refers to P.B.N. (DR Congo) v. Minister for Justice & Equality, Ireland and the Attorney General [2015] IEHC 124, where Barr J. found that these same reports could be considered as new evidence that the applicant was not in a position to present during the original application. The applicant also relies on A.A. (Iraq) v. Minister for Justice, Ireland and the Attorney General [2012] IEHC 63, wherein Cross J. found that the burdens in need of discharge for a successful s. 17(7) application are 'not very onerous'. Cross J. also found that the material in question need only have the potential of containing the ingredients necessary to bring the applicant within the definition of a refugee.
The applicant submits that the failure to disclose material heavily relied upon by the respondent (namely the recent English decision in B.M. and Ors (returnees - criminal and non-criminal) (CG) [2015] UKUT 293, which contributed to the respondent's COI analysis) amounts to a breach of natural justice and fair procedures. He acknowledges that Barr J.'s reasoning in paras. 81 to 85 of P.B.N. holds against him on this point, as the respondent is not obliged to enter into correspondence with the applicant once submissions have been made. However, he asks the Court to depart from Barr J.'s judgment on two grounds:
- Unlike the cases that Barr J. relied on, this case is not one where the issue of unsafe return for failed asylum seekers was considered adequately at a previous stage in the process,
- European law was not raised before Barr J. The applicant argues that, since EU law is being applied in the context of s. 17(7), the relevant policies and principles (particularly Art. 41 of the Charter) apply. He argues that CJEU case law (such as M.M. v. Minister for Justice, Equality & Law Reform and Ors ( C-277/11) recognises a right to be notified of the key documents, central issues and core arguments that inform a public authority's reasoning, so that the affected party may air his views and maintain an effective defence. The applicant highlights Humphreys J.'s views on fair procedures in subsidiary protection cases, as expressed at para. 58 of his judgment in W.T. v. Minister for Justice & Equality [2016] IEHC 108. But he also submits that W.T. can be distinguished from his case because the evidence relied on by the respondent in W.T. did not materially contradict the evidence put forward on the applicant's behalf. In any event, he alleges that the right to be notified has been acknowledged in domestic and English decisions like Finlay-Geoghegan J.'s decision in Olatunji v. RAT and Minister for Justice, Equality & Law Reform [2006] IEHC 113 and Lord Mustill's judgment in Re D & Ors (Minors) (Adoption Reports: Confidentiality) [1995] 4 All ER 385.
The applicant relies on the obiter dictum of Cooke J. in M.A.M.A. v. RAT and Ors [2011] 2 I.R. 729 that legal authorities are not a proper basis from which to draw country of origin information (COI). The applicant also challenges the alleged lack of clarity in the impugned decision regarding whether or not the respondent actually read the COI referenced in B.M. or simply quoted the extracts referred to therein.
The applicant alleges that the impugned decision fails to properly address the representations made and evidence adduced because the reasoning for which the applicant's material was rejected is unclear. Therefore, he submits that it is in breach of the principles outlined by the Supreme Court in Meadows v. Minister for Justice, Equality & Law Reform and Ors. [2010] IESC 3 and Mallak v. Minister for Justice, Equality & Law Reform [2012] 3 I.R. 297. The applicant also refers to domestic and EU legislation that require reasons to be given for a decision.
The applicant submits that the Ramos reports put the respondent on inquiry as to how failed asylum seekers are treated upon return to the DRC and that the respondent erred in law by failing to properly address these matters. Paras. 91 - 93 of P.B.N. are relied on in this regard.
The applicant alleges that the respondent acted ultra vires her powers under s. 17(7). He submits that the section empowers the respondent to determine:
- whether new evidence have been presented that significantly increases the likelihood that the applicant needs protection, and
- whether the applicant lacked the capability to present that evidence as part of his previous application through no fault of his own.
He contends that the European Union (Subsidiary Protection) Regulations 2013 ( S.I. No. 426 of 2013) do not empower the respondent to perform the functions of the Office of the Refugee Applications Commissioner (ORAC) and Refugee Appeals Tribunal (RAT), as she allegedly did in this case by investigating the issue. The applicant also argues that the respondent has acted in breach of s. 17(7D) of the 1996 Act, as inserted by the European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011). He submits that, the respondent is bound to consent to a re-entry application where the two elements set out above have been met. On this issue, he relies on the Supreme Court's decision in P.B.N. (CR Congo) v. Minister for Justice [2014] IESC 9.
The applicant argues that the respondent acted improperly by relying on findings made by the asylum authorities in his prior asylum application, particularly by relying on the findings related to...
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