F.M. (Democratic Republic of Congo) v minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 April 2018
• Neutral Citation: [2018] IEHC 274
• Docket Number: [2011 751 J.R.]
• Court: High Court
• Date: 17 April 2018

[2018] IEHC 274

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2011 751 J.R.]

BETWEEN

F.M. (DEMOCRATIC REPUBLIC OF CONGO)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S. 3 of the Immigration Act, 1999 – Adverse credibility findings – Subsidiary protection – Deportation order

Facts: The applicant had filed the present judicial review application for challenging the decisions of the first named respondent for refusing subsidiary protection to the applicant and issuing deportation orders against the applicant. The applicant had presented various grounds of challenge such as failure to assess new country of origin information and reliance on the findings of the Refugee Appeals Tribunal.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court held that the applicant had failed to specify in the pleadings the basis on which the decision was alleged to be unreasonable and thus, the relief could not be granted. The Court found that the challenge to the deportation order was out of time.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of April, 2018

1 The applicant applied for asylum on 23rd September, 2008 on the basis of his half Tutsi ethnicity being a ground for his persecution in the Democratic Republic of Congo. The Refugee Applications Commissioner found that that application was lacking in credibility and implausible and even assuming that it was true that the applicant was not on his own account a subject of interest to the authorities. That is set out in a report dated 24th February, 2009. The applicant appealed to the Refugee Appeals Tribunal, which rejected the appeal on 26th April, 2010 finding that there were inconsistencies in the applicant's account, that the account was incredible in a number of respects and that the applicant had submitted a birth certificate with a different date of birth from that originally given. The tribunal also found, having considered the country information, that it had not been established that there was a well-founded risk that the applicant would face persecution if returned to the DRC. The Minister then refused a declaration of refugee status on 25th June, 2010. On 14th July, 2010 the applicant applied for subsidiary protection and also around the same time applied for permission to remain in the State by way of representations under s. 3 of the Immigration Act 1999. On 29th April, 2011 the subsidiary protection application was rejected having regard to country of origin information. It was found that ethnic Tutsis did not face any particular risk of mistreatment and indeed made up a significant percentage of holders of prominent roles in public office in the DRC. Furthermore, the Refugee Appeals Tribunal findings in relation to credibility were accepted and the applicant was held not to be credible. The Minister then made a deportation order against the applicant on 22nd June, 2011.

2 The subsidiary protection refusal and the deportation order are now challenged in these proceedings and I have heard helpful submissions from Mr. Paul O'Shea B.L. for the applicant and Mr. Daniel Donnelly B.L. for the respondent.

Ground 1 – Failure to furnish a draft decision in breach of the requirement to cooperate with the applicant under directive 2004/83/EC

3 Mr. O'Shea accepts that the core of this ground was rejected by the CJEU in Case C-277/11M.M. v. Minister for Justice and Equality, ECLI:EU:C:2012:744 (22nd November, 2012) and subsequently by Hogan J. in M.M. v. Minister for Justice and Equality [2013] IEHC 9 [2013] 1 I.R. 370.

4 Mr. O'Shea goes on to seek to interpret ground 1 to mean that the Minister failed to consider updated country material notwithstanding the applicant's failure to furnish such material. It seems to me that allegation is not pleaded and falls outside the scope of the ground (see O. 84 r. 20(3) which now embodies the principle). Thus the point made by the CJEU in Case C-277/11M.M. at para. 66 that the member state must assemble the elements needed to substantiate an application if an applicant fails to do so does not arise.

5 But if it does arise, this does not mean that the State then has to share this additional material with an applicant prior to the decision. It is well- established caselaw that ‘ mainstream’ country of origin material does not have to be so shared; see Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109. No failure under this heading has been made out.

Ground 2 – Breach of minimum standards set out in the qualification directive

6 As pleaded, this is a repetition of the first ground. Mr. O'Shea argues that there was a lack of attention to the effectiveness of laws in the DRC, as opposed to their existence. Failure to examine the effectiveness of the laws is not pleaded.

Ground 3 – Non-transposition of directive 2004/83/EC

7 Under this heading it is argued that the sentence in the qualification directive regarding the duty to cooperate with an applicant is not transposed in S.I. 518 of 2006. That omission does not necessarily mean the directive has not been transposed effectively. The obligation to transpose does not require that every element of the directive must be given statutory language in full in every circumstance. Indeed, Mr. O'Shea accepts that language such as ‘in cooperation with the applicant’ does not readily lend itself to transposition in a common law system. The State continues to have the EU law duty to cooperate. The applicant is not injured by the wording of the regulations whatever about the decision itself, and therefore is not entitled to relief.

Ground 4 - Failure to provide an effective remedy

8 This argument has been rejected by the Court of Appeal in N.M. (DRC) v. Minister for Justice and Equality [2016] IECA 217 [2016] I.L.R.M. 369 and by the Supreme Court in A.A.A. v. Minister for Justice and Equality [2017] IESC 80 (Unreported, Supreme Court, 21st December, 2017), per Charleton J. What is alleged to be a new point is submitted as arising from the reference to the CJEU in case C-89/17Secretary of State for the Home Department v. Banger. The issue in that case was whether art. 47 of the Charter of Fundamental Rights of the European Union was complied with by the availability of judicial review in the case of entry or residence decisions for family members. Advocate General Bobek at para. 103 of his opinion says that for the purposes of art. 47 the body providing the effective remedy must be able to consider ‘ all the questions of fact and law that are relevant to the case before it’. That is the case regarding judicial review. He concludes that ‘ it is for the competent national court to ascertain whether the system of judicial review available under national law complies with that requirement’. Here, judicial review allows for review of all questions of fact and law. Admittedly it does not allow the court to simply substitute its own view as to questions of fact as an appeal by way of re-hearing would. The question, however, is not whether an appeal procedure which did not exist here is desirable or not, but whether judicial review amounts to an effective remedy, which it does. Indeed Charleton J. in A.A.A. v. Minister for Justice and Equality [2017] IESC 80 (Unreported, Supreme Court, 21st December, 2017) at para. 38 specifically rejects the argument that a breach of art. 47 arose.

9 Insofar as Mr. O'Shea argues that he is entitled to an ex nunc examination of the application, he submits that the recast procedures directive can be useful in interpreting the original directive in certain respects: see F.I. v. Governor of Cloverhill [2015] IEHC 639 [2015] 10 JIC 2103 (Unreported, High Court, 21st October, 2015) and S.H.M. v. Minister for Justice and Equality [2015] IEHC 829 [2015] 12 JIC 2115 (Unreported, High Court, 21st December, 2015). However, that only applies where a recast directive is declaratory by way of clarifying ambiguities, not where the recast directive introduces positive amendments which are clearly designed to change the procedure. Reliance on declaratory elements of the recast procedures directive to clear up ambiguous questions is not to be equated with the idea that the directive can simply be applied even though the State has opted out of it. The argument is fundamentally misconceived. If there was any entitlement to an ex nunc examination, the Supreme Court would have decided A.A.A. differently.

10 Mr. O'Shea then raised a related point that because the Irish procedure does not allow the applicant to be granted subsidiary protection by the court and because the court is confined to setting aside any flawed decision he has been denied an effective remedy. I rejected a related argument in Lingurar v. Minister for Justice and Equality [2018] IEHC 96 [2018] 2 JIC 0808 (Unreported, High Court, 8th February, 2018). The applicant has not demonstrated that it would be an ineffective remedy, if the decision is found to be flawed, to send it back to the decision-maker with a judgment setting out the parameters for reconsideration. The conclusion of all the foregoing is that judicial review is an effective remedy.

Ground 5 – Lack of an appeal of the subsidiary protection decision breaches the principle of effectiveness

11 Mr. O'Shea has dropped the equivalence argument. Insofar as the effectiveness argument is concerned this is essentially a repeat of ground 4.

Ground 6 – Failure to have regard to representations

12 It follows from the judgment of Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] I.L.R.M. 401 that the onus is on an applicant to show that representations were not taken into account, which the applicant has failed to do here. How the decision-maker dealt with the representations as opposed...