K (M) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 15 December 2014
• Neutral Citation: [2014] IEHC 658
• Date: 15 December 2014
• Court: High Court

[2014] IEHC 658

THE HIGH COURT

[No. 1015 JR/2011]

K (M) v Min for Justice

No Redaction Necessary

JUDICIAL REVIEW

BETWEEN/

M. K.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

REFUGEE ACT 1996 S17(7)

SINGH v SECRETARY OF STATE FOR THE HOME DEPT UNREP 8.12.1995 1995 EWCA CIV 53

S (EM) v MIN FOR JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370 2004 IEHC 398

REFUGEE ACT 1996 S17(7)(A)

REFUGEE ACT 1996 S17(7)(B)

REFUGEE ACT 1996 S17(7)(C)

REFUGEE ACT 1996 S17(7)(D)

REFUGEE ACT 1996 S17(7)(E)

REFUGEE ACT 1996 S17(7)(F)

REFUGEE ACT 1996 S17(7)(G)

REFUGEE ACT 1996 S17(7)(H)

EEC DIR 2005/85

K (J) [UGANDA] v MIN FOR JUSTICE UNREP HOGAN 13.12.2011 2011/29/7822 2011 IEHC 473

NCUBE v MIN FOR JUSTICE UNREP COOKE 22.11.2011 2011/40/11393 2011 IEHC 436

H (L) [GEORGIA] v MIN FOR JUSTICE 2011 3 IR 700 2011/24/6337 2011 IEHC 406

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE ONIBIYO 1996 2 WLR 490 1996 2 AER 901 1996 QB 768

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

Asylum, Immigration & Nationality – Fear of persecution – Credibility of medical report – S. 17 (7) of the Refugee Act 1996 as amended by the European Communities (Asylum Procedures) Regulations 2011 – Readmission to asylum – Existence of new elements

Facts: The applicant sought an order by way of certiorari for quashing the decision of the respondent who refused to entertain the applicant's claim for re-admission to the asylum process. The applicant contended that the respondent had failed to conduct a preliminary investigation regarding existence of new elements in the asylum claim as required under s. 17 (7) of the Refugees Act 1996 (as amended).

Mr. Justice Hanna refused to grant an order of certiorari to the applicant and upheld the decision of the respondent. The Court expressly followed the dicta contained in Ncube v Minister for Justice and Equality [2011] IEHC 436 and held that under s. 17 (7) of the Refugee Act 1996, two criteria must be satisfied: First, the introduction of novel findings in the application should have high probability of getting the consent of the respondent and second, such facts could not be presented at the initial claim coupled with no fault on behalf of the applicant. The Court was of the view that it was only when both the criteria were satisfied that the respondent could be compelled to grant his consent to an application under the said Act. The Court held that the presentation of an alleged new medical report presented by the applicant merely reflects an elaboration of injuries suffered by the applicant and it could have been presented when the claim was initially filed.

1 1. This is a post-leave application for an order of certiorari by way of judicial review quashing the decision of the respondent, notified to the applicant's solicitors by letter dated 4 ^th October, 2011, refusing the applicant's application, pursuant to s. 17(7) of the Refugee Act 1996, as amended, to make a fresh application for a declaration of refugee status.

Background

2 2. The applicant, who is from the Democratic Republic of Congo ("DRC"), was born in Kinshasa on 31 ^st December, 1970. She is a protestant and of Bakongo ethnicity. She is married and has 6 children. Her husband and children are in the DRC. The applicant claimed to have fled the DRC on 18 ^th June, 2008, and to have arrived in Ireland the following day. She stated that she travelled through Congo Brazzaville, and Paris. She claimed asylum in Ireland on the grounds of political opinion, religion, and/or membership of a particular social group.

3 3. The applicant claimed to have worked in the DRC as a nurse in the police force. She said that her family were members of Bundu dia Kongo ("the BDK"), a religious and political group, though she was unable to recall when they joined. She stated that her father and mother were arrested on 10 ^th July, 2002, because of their involvement in a protest march. The applicant stated that they were beaten and died in prison. She claimed that her sister was also imprisoned and killed. The applicant states that the march was about the rights of people in the DRC, including the right of freedom to worship.

4 4. The applicant claimed that her husband attended a BDK meeting on 30 ^th June, 2006, but that before it concluded the police stopped the meeting and beat the people who were in attendance. Those present were arrested and taken to Kiameze prison. The applicant claimed not to have heard from her husband since this time.

5 5. The applicant stated that she joined the BDK on 1 ^st January, 2007. Following the massacre in Bas Congo between 31 ^st January and 2 ^nd February, 2008, members of the BDK in Kinshasa decided to stage a protest. The applicant claimed that she took leaflets to her workplace and distributed them among her colleagues. At a meeting at her workplace on 20 ^th February, 2008, the applicant stated that the commander/manager noticed some of the applicant's colleagues with the leaflets and, upon inquiring about them, he was told that the applicant had distributed them. The commander indicated that he would deal with this matter when he had finished what he was doing.

6 6. The applicant claimed that she learnt that the commander was aware that she had handed out the leaflets, and that she knew she would be in trouble. The applicant stated that she decided to run away before this could happen. She said that she stayed with friends in Masina. She claimed that on 29 ^th February, 2008, she left her children with a friend and attended a protest meeting. A crowd assembled for the protest. However, the police arrived and, according to the applicant, the crowd was dispersed and they were arrested and beaten with soft plastic sticks, before being taken to the Provincial Inspectorate of the Police of Kinshasa.

7 7. The applicant claimed that she was beaten while in police custody, and that she was raped on 3 occasions. During this time she claimed to have contracted malaria, and to have suffered from blood pressure and stomach pains. She stated that she became extremely ill, at which point the commander sent her to hospital where she was an in-patient for two and a half months. The applicant recovered during this time and was able to walk again.

8 8. The applicant stated that while in hospital she met Louise Mbo, an anaesthetist, who had studied with the applicant's husband. The applicant told Ms. Mbo her story. She stated that Ms. Mbo agreed to help her out of her situation. There were two police men posted to guard the applicant in the hospital. Ms. Mbo paid them money and they allowed the applicant to escape. The applicant stated that she went to her friend's farm, and that two of her cousins, and her friend's husband, organised payment for her travel to Ireland. The applicant stated that she travelled to Ireland with an agent and that she acted as his wife. She claimed that she had never travelled before and that the agent presented travel documents on her behalf at immigration control.

9 9. The applicant claimed that she was being sought by the police for rebelling against the authorities. She explained that distributing the leaflets was a breach of police ethics, as they are supposed to be politically neutral; and that because of her actions, if she is returned to the DRC, she is at risk of being killed. The applicant stated that she would not be safe in the DRC and that this is why she had to come to Ireland.

10 10. The applicant completed her application for asylum questionnaire and had an interview with ORAC in the usual way. The Commissioner recommended that the applicant not be declared a refugee. She appealed his decision to the RAT. However, the Tribunal, in its decision dated 28 ^th June, 2010, affirmed ORAC's recommendation. The RAT's decision was based primarily on its finding that the applicant was not credible.

11 11. The applicant had submitted a medical report from Dr. Donal O'Donovan in support of her claim for asylum. The RAT's consideration of the medical report is set out in the following terms at para. F of its decision:

Dr. O'Donovan states in his report that the applicant's injuries which he lists are highly consistent with the stated cause. The Tribunal is asked to accept the report as corroborating the applicant's evidence. I do not accept the report for the reasons set out above.

12 12. The RAT went on to note at p. 21 of its decision:

If all the doctor does is say that the scarring/injury is "highly consistent" with the claimed history without also addressing the relative likelihood of few other possible causes, the report will clearly be of less potential value that if it does. As illustrated by the evidence in this case, it may probably leave an immigration judge to find that a finding of "highly consistent" has very limited value.

Application for re-admittance to the asylum system pursuant to s. 17(7)

13 13. Following the rejection of her appeal by the RAT, the applicant made an application to the respondent pursuant to s. 17(7) of the Refugee Act 1996, as amended, by letter dated 8 ^th August, 2011, seeking the consent of the respondent to make a further application for refugee status. There were three grounds upon which readmission to the asylum system was sought. However, only one of these is relevant to the present case, i.e. the applicant's contention that the dismissal by the RAT of the medical report, in the terms reproduced above, was "simply not good enough." In this regard, the applicant's letter stated:

The Tribunal Member has duties under various instruments to cooperate and apply and share the burden of proving an applicant's claim. The minimum that should have been done was to either make further enquiries of the Doctor as regards any perceived...