E. D-N, L. D. S. and Another v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 20 September 2013
• Neutral Citation: [2013] IEHC 447
• Court: High Court
• Date: 20 September 2013

[2013] IEHC 447

THE HIGH COURT

[No. 758 J.R./2011]

D-N (E) & Ors v Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

E. D-N, L. D. S. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND E. D-N) AND M. D. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND E. D-N)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

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

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

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

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

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

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

M (M) v MIN FOR JUSTICE & ORS 2013 1 WLR 1259

M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9

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

Z (S) [PAKISTAN] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 1.3.2013 2013 IEHC 95

BARUA v MIN FOR JUSTICE UNREP MAC EOCHAIDH 9.11.2012 2012/4/884 2012 IEHC 456

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

A (SI) [SUDAN] v REFUGEE APPEALS TRIBUNAL (BRENNAN) & ORS UNREP CLARK 4.10.2012 2012/1/123 2012 IEHC 488

IMMIGRATION

Judicial review

Application for judicial review - Certiorari - Challenge to decision of Minister refusing subsidiary protection - Democratic Republic of Congo - Credibility - State protection - Whether independent review of credibility - MM v Minister for Justice, Equality and Law Reform (Case C-277/11), (Unrep, ECJ, First Chamber, 22/11/2012); MM v Minister for Justice, Equality and Law Reform [2013] IEHC 9, (Unrep, Hogan J, 23/1/2013); Re Worldport Ltd [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005); Z(S) (Pakistan) v. Minister for Justice [2013] IEHC 95, (Unrep, Hogan J, 1/3/2013); Barua v Minister for Justice and Equality [2012] IEHC 456, (Unrep, MacEochaidh J, 9/11/2012); Meadows v Minister for Justice [2010] IESC 3, (Unrep, SC, 21/1/2010) and A(SI) (Sudan) v The Refugee Appeals Tribunal [2012] IEHC 488, (Unrep, Clark J, 4/10/2012) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Decision quashed (2011/758JR - MacEochaidh J - 20/9/2013) [2013] IEHC 447

N(D) v Minister for Justice and Equality

Facts: The second and third named applicants were minors and the children of the first named applicant, who brought proceedings on her own and her children”s behalves. The applicants were originally from the Democratic Republic of Congo. They applied for asylum upon arrival in Ireland in June 2007, but their application was rejected by the Refugee Applications Commissioner on the basis of negative credibility findings. The Refugee Appeals Tribunal heard the appeal and came to the same conclusion. The first named applicant claimed that there was a real risk that she and her children would suffer serious harm if they were returned to their native country because of her husband”s membership of a Congolese political group: the Movement for the Liberation of Congo. She stated that serious unrest broke out in Kinshasa on the 22nd and 23rd March 2007, and because of her husband”s political activities, he was arrested on 24th March 2007. It was further claimed that following this arrest, the first named applicant was subjected to harassment by state authorities, which involved a gun being put to her head and the head of one of her children. She left the country with her two children soon after. The applicants subsequently made claims for subsidiary protection on the same grounds; however, this was similarly refused.

The applicants obtained leave to apply for judicial review to challenge the decision of the respondent in refusing to grant the subsidiary protection applications. It was argued that the respondent failed to properly consider an arrest warrant issued by the authorities of the Democratic Republic of Congo, which the first named applicant said supported her account of the circumstances which caused her to flee her home country; that the respondent had failed to conduct his own assessment of the credibility of the first named applicant, instead of relying on the findings of the Refugee Appeals Tribunal; and that the respondent had incorrectly determined that although state protection was not available to the applicants if they were returned to their native country, UN sanctioned forces stationed in the Democratic Republic of Congo could protect the applicants - it was said that protection by an international organisation not in control of the territory was insufficient for the purposes of the application.

Held by Mac Eochaidh J that the then recent decision of M.M. v. Minister for Justice, Equality and Law Reform [2013] IEHC 9 (which had been decided following consideration of the case by the European Court of Justice in M.M. v. Minister for Justice, Equality and Law Reform (Case C-277/11)) was directly relevant to the applicants” case. It was determined in that case that in considering an application for subsidiary protection, the Minister for Justice & Equality was obliged to conduct his own assessment of the credibility of an applicant rather than rely on the findings of the Refugee Appeals Tribunal because the procedure was distinct from the asylum process. It was held that the Court was bound to follow that decision unless it was determined that it had been erroneously made because of a misapplication of the related decision of the European Court of Justice. The respondent had argued that M.M. v. Minister for Justice, Equality and Law Reform [2013] IEHC 9 had been incorrectly decided because an application for subsidiary protection was supplementary to an application for refugee status. However, this submission was rejected by the Court, and it was instead determined that the two procedures were not sufficiently related to allow the respondent to rely on the credibility findings of the Refugee Appeals Tribunal in the absence of his own assessment. For those reasons, it was held that the respondent had failed to provide the applicants with a fair hearing at the subsidiary protection stage. It was further held that because the respondent”s decision on the first named applicant”s credibility could not be severed from the decision on state protection and internal relocation, the substantive decision had to be quashed. The other grounds advanced by the applicant did not require determination.

Decision of the respondent quashed

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 20th day of September 2013

2 1. This is an application for judicial review of a refusal by the Minister for Justice and Equality to grant subsidiary protection to the applicant (and her minor children). Leave to seek judicial review was granted on 22 ^nd August 2011, by Hedigan J. The grounds of complaint advanced on behalf of the applicant can be summarised as follows:

3 a a. The Minister failed to consider in any way an arrest warrant issued by the authorities of the Democratic Republic of Congo which the applicant says supports her account of the circumstances which caused her to flee her home country.

4 b b. The Minister ought to have conducted his own assessment of the credibility of the applicant, not only because the borrowed findings from the RAT are marginal, but because the application for subsidiary protection is a freestanding process.

5 c c. The Minister accepted that State protection was not available and concluded that UN sanctioned forces stationed in the Democratic Republic of Congo, could protect the applicant. It is argued that protection by an international organisation not in control of the territory is insufficient for the purposes of the Directive and the Protection Regulations.

Background

6 2. The applicant was born in 1968 in the Democratic Republic of Congo. She married the father of her children in 1999. She says that he is a high level member of the Movement for the Liberation of Congo, an important political group. She said that serious unrest occurred in Kinshasa on 22 ^nd and 23 ^rd March 2007 and the first named applicant was arrested on 24 ^th March 2007. She says that she has had no contact with him since that day. She does not know if he is still in custody or if he has been released. Following the arrest of her husband the Congolese authorities harassed the applicant and put a gun to her head and to the head of one of her children. She decided to leave her country on 31 ^st May 2007.

7 3. She applied for refugee status on the 6th June 2007. She completed the application for refugee status questionnaire on 14 ^th June 2007 and a Memorandum of Interview with the Refugee Applications Commissioner was completed and dated 13 ^th September 2007. A report of the Refugee Applications Commissioner into her claim for asylum is dated 18 ^th September 2007. Such status having been refused, she appealed to the Refugee Appeals Tribunal which delivered a decision on 18 ^th December 2008.

8 4. The Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner declining refugee status to the applicant. Significant credibility findings are given as the reason for the negative outcome. The conclusion is stated as follows:

"Having observed the applicant giving her evidence and witnessing her attempts at explaining the contradictions and inconsistencies contained in her application and taking into consideration her overall demeanour, the Tribunal is satisfied that she is not credible."

9 5. The RAT decision was not...