Lukombo -v- Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 27 March 2012
• Neutral Citation: [2012] IEHC 129
• Date: 27 March 2012
• Court: High Court

[2012] IEHC 129

THE HIGH COURT

[No. 830 J.R./2011]

Lukombo v Min for Justice & Ors

BETWEEN

SAMBU SAMUEL LUKOMBO

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3(6)

RSC O.84 r21(1)

EEC DIR 2004/83 ART 4(1)

IMMIGRATION ACT 1999 S3

M (M) v MIN FOR JUSTICE & ORS UNREP HOGAN 18.5.2011 (EX TEMPORE)

AHMED v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

J (O) [NIGERIA] v MIN FOR JUSTICE & AG UNREP CROSS 3.2.2012 2012 IEHC 71

N (V) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 16.2.2012 2012 IEHC 62

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370

A (MA) v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

N (O) v MIN FOR JUSTICE & ORS UNREP RYAN 14.12.2011 2011/13/12250 2011 IEHC 472

I (P) & ORS v MIN FOR JUSTICE UNREP HOGAN 11.1.2012 2012 IEHC 7

DONEGAN v DUBLIN CITY COUNCIL & ORS 2012 2 ILRM 233 2012 IESC 18

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

HOUSING ACT 1966 S62

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

D v UNITED KINGDOM 1997 24 EHRR 423 2 BHRC 273

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

M (JT) v MIN FOR JUSTICE UNUREP CROSS 1.3.2012 2012 IEHC 99

UNITED STATES DEPARTMENT OF STATE 2008 HUMAN RIGHTS REPORT: DEMOCRATIC REPUBLIC OF CONGO 25.2.2009

IMMIGRATION

Deportation

Application for leave for judicial review of subsidiary protection order and deportation order - Application for leave to amend grounds - State protection - Lack of effective remedy - Fear of persecution - Humanitarian relief - Consideration of medical condition - HIV positive - Rationality of credibility decision - Selective treatment of country of origin information - No appeal available from Minister's subsidiary protection decision - Refugee scheme - Merits of claim - Differences in medical treatment - Serious harm - Whether arguable that decision on state protection irrational - Whether judicial review an adequate remedy - Whether to grant leave to amend grounds out of time -M(M) v Minister for Justice [2011] IEHC 547, (Unrep, Hogan J, 18/5/2011); Ahmed v Minister for Justice (Unrep, Birmingham J, 24/3/2011); BJSA (Sierra Leone) (Akhiele) v Minister for Justice [2011] 1 IEHC 38, (Unrep, Cooke J, 1/2/2011); J(O) v Minister for Justice [2012] IEHC 71, (Unrep, Cross J, 3/2/2012); Jayeola N(V) v Minister for Justice [2012] IEHC 62, (Unrep, Cooke J, 16/2/2012); SL (Nigeria) v Minister for Justice (16th October, 2011); A(BJS) v Minister for Justice [2011] IEHC 381,(Unrep, Cooke J, 12th October, 2011); O(N) v Minister for Justice [2011] IEHC 472, (Unrep, Ryan J, 14/12/2011); I(P) v Minister for Justice [2012] IEHC 7, (Unrep, Hogan J, 11/1/2012); Donegan v Dublin City Council [2012] IESC 18, [2012] 3 IR 600; D v United Kingdom (Application No 30240/96) [1997] 24 EHRR 42 and JTM v Minister for Justice [2012] IEHC 99, (Unrep, Cross J, 1/3/2012) considered - Immigration Act 1999 (No 22), s 3(6) - Housing Act 1966 (No 21) - Council Directive EC/84/2003, art 4(1) - Leave partially granted; leave to amend grounds refused (2011/830JR - Cross J - 27/3/2012) [2012] IEHC 129

Lukuombo v Minister for Justice and Equality

1 JUDGMENT of Mr. Justice Kevin Cross delivered on the 27th day of March, 2012

Background

2 1. The applicant is a native of the Democratic Republic of Congo (DRC) who apparently arrived in the State on 30 ^th October, 2009 and applied for asylum. This application was ultimately refused by the Refugees Appeals Tribunal (RAT) on 8 ^th May, 2010, and he was duly notified that the Minister was proposing to make a deportation order in respect of him which ultimately issued on 25 ^th August, 2011. Apparently, the applicant was informed of this deportation order around 29 ^th August, 2011, by letter dated 25 ^th August. 2011.

3 2. The applicant submitted an application for subsidiary protection on 16 ^th July, 2010, along with an application for leave to remain in the State pursuant to s. 3(6) of the Immigration Act 1999. On 10 ^th May, 2011, the applicant received a determination dated 5 ^th May. 2011, refusing the subsidiary protection application.

4 3. The applicant initiated the judicial review motion by notice dated 8 ^th September, 2011, returnable on 3 ^rd October, 2011.

5 4. The applicant's claim for protection related to an alleged risk if returned to the DRC of the death penalty of execution, torture or inhumane and degrading treatment or punishment; and/or serious and individual threat to his life or person by reason of indiscriminate violence in a situation of armed internal conflict. His claim for humanitarian relief related to his current medical conditions (he is HIV positive and has Hepatitis B) and the lack of life saving treatment in the DRC.

6 5. The application for judicial review in respect of the deportation order was issued within the applicable fourteen day period. The application in respect of the refusal of subsidiary protection is subject to the time limit set out in O. 84, r. 21(1), and it is accepted by the respondent that the application was within the six month period in respect of the subsidiary protection determination which is prescribed in the case of certiorari applications.

7 6. It is accepted by the applicant that the applicant is outside of the three month period for the other declaratory reliefs that he seeks. The respondent claims that the application for leave was not made promptly.

8 7. In view of the fact that the application herein was brought within the two week period of the deportation decision, the court will not make any finding against the applicant for want of promptness in bringing the judicial review application in respect of his certiorari challenge to the subsidiary protection decision. The court is of the view that it was not unreasonable for the applicant to wait until the deportation order in the circumstances.

9 8. The applicant's grounds seeking relief are based on:-

10 a A. Alleged breach of Article 4(1) of the Qualification Directive.

11 b B. Alleged lack of effective remedy.

12 c C. That no consideration was given to the applicant's medical condition and this is claimed as a ground for challenging the subsidiary protection decision as well as in the context of the applicant's application under s. 3 of the Immigration Act 1999.

13 d D. The applicant challenges the rationality/reasonableness of the Minister's decision in relation to credibility and the alleged selective treatment of country of origin information.

14 9. Whereas the applicant makes certain complaints in relation to the deportation order, it is conceded by the respondent and agreed by the applicant that if any of the challenges to the subsidiary protection decision are successful that the deportation order must also be reviewed.

15 10. The applicant brings the within application for leave for judicial review and it is agreed that in relation to the subsidiary protection decision the applicant need only show arguable grounds.

(A) Breach of Article 4(1) of the Qualification Directive

16 11. Mr. O'Shea, counsel on behalf of the applicant, concedes that the High Court has in a number of decision conclusively dealt with this argument in relation to leave and substantive points and not withstanding the fact that Hogan J. made a reference on this point to the Court of Justice in Mujyanama (M.M.) v. Minister for Justice, Equality and Reform, Ireland and the Attorney General (Unreported, Hogan J., 18 ^th May, 2011). Leave has been refused in a number of cases relying upon the decisions in Ahmed v. Minister for Justice, Equality and Law Reform (Unreported, Birmingham J., 24 ^th March, 2011), Cooke J. in B.J.S.A. (Sierra Leone) (Akhiele) v. Minister for Justice, Equality and Law Reform [2011] I IEHC 38, and this Court in Jayeola v. MJE & the Attorney General (Unreported, 3 ^rd February, 2012). Accordingly, Mr. O'Shea formally advanced this proposition in order to maintain the case in a higher court should that be necessary.

17 12. The court rejects the application for leave on this point.

(B) The Effective Remedy

18 13. The applicant maintains that the fact that there is no appeal from the Minister's decision in subsidiary protection means that there is no "effective remedy" for such decisions and that, therefore, they are unlawful.

19 14. This proposition has also been comprehensively dealt with in these courts by a large number of cases, most recently the comprehensive judgment of Cooke J. in Victor Nendah v. MJLR & RAT (16 ^th February, 2012) in which he referred to the judgment in the case of S.L. (Nigeria) v. MJELR (16 ^th October, 2011) and B.J.S.A. (Sierra Leone) v. MJELR (12 ^th October, 2011) [2011] IEHC 381, and M.A.A. v. MJELR (Birmingham J.) 24 ^th March, 2011 and Ryan J. in N.O. v. MJELR (14 ^th December, 2011), and Hogan J. in P.I. & E.I. v. MJELR (11 ^th January, 2012). Cooke J. in Nendah (above) went on to state:-

"In the judgment of this Court all possible nuances of the argument upon which this ground is advanced have been thoroughly considered in those judgments and nothing has been submitted in the hearing of the present application which would justify this Court departing from the conclusion that had been reached in those judgments."

20 15. Subsidiary protection is a form of international protection introduced by the Qualifications Directives for the explicit purposes of complimenting refugee status...