Ninga MBI v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Cross
• Judgment Date: 23 March 2012
• Neutral Citation: [2012] IEHC 125
• Docket Number: [2011 No. 766 J.R.]
• Court: High Court
• Date: 23 March 2012

[2012] IEHC 125

THE HIGH COURT

JUDICIAL REVIEW

Cross J.

[2011 No. 766 J.R.]

BETWEEN

OLIVER NINGA MBI

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

1 In the above proceedings, the applicant is applying for leave for judicial review by way of certiorari and other reliefs concerning first of all the decision of the first named respondent to refuse to grant the applicant subsidiary protection and secondly, to the deportation order issued in respect of the applicant.

2 It is accepted that in the case of the application for leave for judicial review in respect of the subsidiary protection decision that the standard applicable is arguable grounds and in the case of the deportation order, it is substantial grounds. It is also accepted that if the application for judicial review in respect of the subsidiary protection decision is granted that the application in respect of the deportation order must follow. The applicant requires an extension of time in respect of the deportation order application which was brought some two weeks outside the time stipulated by law (fourteen days). The applicant has sought leave and been granted leave to file a supplementary affidavit explaining the reasons for the delay indicating that he immediately consulted his then solicitors (the Legal Aid Board) and they advised that they could not be of assistance and that one week later he contacted his present solicitors to arranged to meet him and he furnished instructions on 5th August, 2011, to challenge the deportation order and subsidiary protection order and counsel was briefed and a meeting was held on 24th August, 2011, which was the date of the motion.

3 In the circumstances, I will grant the applicant the extension of time required to challenge the deportation order.

History

4 The applicant is a national of the Democratic Republic of Congo born on 16th May, 1972, where he alleges that he is a member of an opposition political group called the Movement for the Liberation of Congo ("MLC").

5 The applicant alleges that on 22nd March, 2007, he was summonsed to the MLC headquarters to deal with a situation where the power supply had been cut (he is a trained electrical engineer) and while he was there, gunshots were heard and he found himself in the middle of a gunfight between the MLC followers and government forces who were seeking to disarm the MLC members.

6 The applicant alleges that while trying to escape he was arrested by government troops and taken to a police station and that he was tortured, deprived of food and water and threatened with execution. In particular, he was asked to reveal the location of the leader of the MLC, Mr. Benba.

7 The applicant says that he was blindfolded, stabbed in the back and hit over the head with the butt of a gun which caused him to bleed and fall unconscious and his head was bandaged and he escaped on payment of US$2,000 thanks to the intervention of a nurse and eventually fetched up within the State.

8 On 17th February, 2008, the applicant completed an application for refugee status and the Refugee Legal Service (RLS) submitted documentation in support of his application on 20th May, 2008 and requested that no interviews took place until a medico legal report from SPIRASI was available. On 4th June, 2008, ORAC replied to the request from the RLS stating that no undertaken could be given to delay the process and the applicant was duly interviewed on 18th June, 2008, and a report was furnished recommending that the applicant should not be declared a refugee which was notified to the applicant.

9 On 5th August, 2008, the RLS lodged an appeal with the Refugee Appeals Tribunal (RAT) and the RLS submitted a medico legal report in support of the applicant's application and furnished further documentation.

10 On 2nd April, 2009, an oral hearing was heard in respect of the applicant's appeal and the RAT recommended that the ORAC recommendation be affirmed and the applicant should not be declared a refugee. This decision was notified to the applicant on 31st March, 2010.

11 On 14th May, 2010, the Minister refused the applicant's application for refugee status which was notified on 17th May, 2010, the applicant was duly informed that the first named respondent proposed to make a deportation order.

12 On 4th June, 2010, the applicant's solicitors, the RLS, submitted an application for subsidiary protection pursuant to the 2006 Regulations and an application for permission to remain under s. 3 of the Immigration Act 1999.

13 It is in respect of the refusal of these applications that the within proceedings were initiated.

14 The applicant in these proceedings relies on a total of sixteen grounds. A number of these grounds have been decided previously against the applicant in a number of cases.

15 Mr. Paul O'Shea of counsel is to be commended that he accepted the indication of this Court in Jayeola v. Minister for Justice and Equality [2011] 656 J.R. (3rd February, 2012) in which case I indicated that the appropriate procedure in such matters was to formally raise these points that had previously been decided, should they be required in any further hearing of the matter and then to proceed to argue the substantive grounds of the case.

16 In this regard, Mr. O'Shea formally submitted, inter alia, that Article 4.1 of the Qualification Directive had not been properly transposed into domestic law by means of S.I. No. 518 of 2006 by any other means as the Article stated:-

"…In cooperation with the applicant and it is the duty of the Member States to assess the relevant elements of the claim."

17 Notwithstanding the reference to the court of justice by Hogan J. in M.M. (Mujyanama), the High Court has decided in a large number of cases e.g. Ahmed v. MJELR (Unreported, High Court, Birmingham J. 24th March, 2011); BJSA (Sera Leone) (Hiele) v. MJELR [2011] 1 IEHC 38 (Cooke J.) and myself in Jayeola (above) and in other cases that this point is without merit and accordingly, I refuse leave on this ground.

18 Secondly, the applicant formally also submitted that there was a lack of effective remedy in Irish law by means, inter alia, of the inability of the applicant to produce new material and further, there was a breach of the principle of equivalence as it was alleged that there was no mechanism whereby an applicant could appeal from their refusal of subsidiary protection.

19 These points have also been decided against the applicant in a large number of cases e.g. Efe v. Minister for Justice, Equality and Law Reform ( 2) [2011] IEHC 214, P.I & E.I. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Hogan J. 11th January, 2011); ISOF v. MJELR (No. 2) [2010] IEHC 455, Cooke J. and indeed by myself in Jayeola (above), these points also are in the view of the court unsustainable and I will refuse leave on those grounds.

Substantive Grounds

20 The applicant concedes that the application for subsidiary protection relied upon substantially the same information as was supplied to the RAT for its decision.

21 Where subsidiary protection applicants put forward the same set of facts, the Minister is entitled to and must have regard to the asylum decisions and in particular the credibility decisions during the process and he is not obliged to reopen or reinvestigate the asylum decision- see N.F. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Charleton J.)

22 In Obuseh v. Minister for Justice, Equality and Law Reform [2010] 1 IEHC 93, Clark J. stated:-

"The Court finds it difficult to envisage any circumstances where an asylum applicant is found not credible in his/her claim as to the existence of a well founded fear of persecution will be granted subsidiary protection on the same facts. One has to ask oneself how, if a person's assertion relating to a fear of persecution is not believed, it can logically be possible that he/she might be eligible for protection on the basis of the same story under the Qualification Directive and Protection Regulations. Subsidiary protection is exactly what it says it is- it provides complementary protection to those applicants who do not meet Convention requirements to establish persecution but who nevertheless require protection….

If therefore the applicant has been rejected on credibility grounds for refugee status and he wishes to obtain subsidiary protection, he faces the unenviable task of establishing substantial grounds for believing that he will face a risk of serious harm from the death penalty or execution or torture or inhuman or degrading treatment on his return to his country of origin within the meaning of Article 15(a) or (b) of the Qualification Directive."

23 In this case, the Minister, inter alia, relied upon the credibility findings adverse to the applicant in the decision of ORAC and in particular of the RAT. The Minister also came to substantially the same conclusions as the RAT in relation to relocation and State protection.

24 There has been no challenge to the decisions of the ORAC or the RAT by way of judicial review and indeed in the application for subsidiary protection, there was no submission in the application that the decisions in relation to credibility or the country of origin decisions were arrived at on a legally erroneous basis.

25 Counsel on behalf of the applicant urges that the applicant was at the time was represented by the RLS who he alleges do not generally challenge decisions by way of judicial review possibly due to resources problems. Be that as it may, the RLS who have great experience in handling claims on behalf of persons seeking refugee status etc. did not in their application for subsidiary protection raise any objection to the basis upon which the earlier decisions had been arrived upon.

26 The applicant...