P.B. N. (DR Congo) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IESC 9
• Court: Supreme Court
• Docket Number: [Appeal No. 413/2013]
• Date: 21 February 2014

BETWEEN

P.B. N. [DR CONGO]

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2014] IESC 9

[Appeal No. 413/2013]

THE SUPREME COURT

Judicial Review – Refugee status - Deportation - Application for subsidiary protection - Leave to remain - Humanitarian grounds - Re-entry into asylum process - Persecution - Fair issue to be tried - Greater injustice - Interlocutory injunction

Facts: The appellant was originally from the Democratic Republic of Congo. She applied for asylum upon arrival in Ireland in December 2007, but her application was rejected by the Refugee Applications Commissioner and the Refugee Appeals Tribunal on the basis of negative credibility findings. Claims for subsidiary protection and humanitarian leave to remain were similarly refused, and a deportation order was made in respect of her in 2011. Her next steps were to take make applications to the Minister for Justice and Equality for consent to re-enter the asylum process and to revoke the deportation order. In both matters, she argued that she feared being subject to persecution if returned to her native country because of her status as a failed asylum seeker. These were rejected in November 2012 and February 2013 respectively. The appellant subsequently brought an application for leave to apply for judicial review to challenge these last two decisions.

An application for an interlocutory injunction restraining her deportation pending the determination of the judicial review proceedings was also brought. This was, however, refused in the High Court. The appellant had argued that there was a fair issue to be tried because the Minister had erroneously determined that a fresh report from a UK charity entitled “Unsafe Return – Refoulement of Congolese Asylum Seekers”, which had been submitted in support of her latest applications, did not constitute fresh evidence. The appellant had also argued that the Minister had failed to comply with the prohibition on refoulement. However, the High Court held that the allegations within this report were not substantially different to those that had been made in the reports that had been before the Minister at the subsidiary protection and leave to remain on humanitarian grounds stages. The argument on refoulement was similarly rejected. The appellant argued that in considering the new evidence, the High Court judge had to decide whether there was a fair issue to be tried. It was said, however, that the High Court judge balanced the various pieces of country information presented as if the application was one for full judicial review relief.

Held by Laffoy J. (with Fennelly J. and McKechnie J. concurring) that the case of Okunade v. The Minister [2012] IESC 49 outlined the test to be applied in determining whether interlocutory relief should be granted. The Court had to decide, firstly, whether there was a fair issue to be tried in the substantive proceedings. If that was found to be the case, the Court then had to determine whether allowing the application would constitute a greater injustice than rejecting it, weighing up the fact that a competent government authority had made a decision and that there may be a public interest in following that decision, against the fact that there would be a wrong done to the applicant if the substantive hearing established that the Minister’s decision was unlawful. Finally, the court had to consider the strengths and weaknesses of the case.

On the basis of the Okunade case, it was held that the appellant had established an arguable case. It was said that the High Court judge should not have undertaken an exercise to determine the strengths and weaknesses of the substantive proceedings in determining whether a fair issue to be tried had been established. This was because the assessment of the strengths and weaknesses of the case was the last and least important limbs of the Okunade test. The appellant was bringing judicial review proceedings on the basis that the Minister had failed to properly consider the new evidence that had been presented and had failed to comply with the prohibition on refoulement. It was held that an arguable case in this regard was clearly established.

Since the first limb of the Okunade test had been satisfied, the Court then had to consider whether the greater injustice would be in either refusing or granting the interlocutory relief. It was said that on the basis of the appellant’s arguable grounds, there was sufficient credibility in the suggestion that a real risk of significant harm would attach to the appellant on deportation. As such, it was held that a refusal of interlocutory relief would constitute a greater injustice than allowing it. The appeal was allowed, the High Court judgment of the 16th September 2013 was quashed, and an interlocutory application was made restraining the deportation of the appellant pending the determination of the judicial review proceedings.

Ms. Justice Laffoy

Judgment of Ms. Justice Laffoy delivered on 21st February, 2014

1 Background

2 1. The appellant, a national of the Democratic Republic of Congo (the DRC), has been in the State since 2007. Her engagement with the asylum and immigration process in this jurisdiction is outlined in the judgment of the High Court (Clark J.) delivered on 16th September, 2013, from which she appeals to this Court, in some detail. In summary, the stages within the asylum and immigration process and in the High Court proceedings leading to this appeal and application were as follows:

• In December 2007 the appellant applied for asylum. As is recorded in the judgment of the High Court, both the Refugee Applications Commissioner (RAC) and the Refugee Appeals Tribunal (RAT) made negative credibility findings in relation to her account of the circumstances in which she arrived in the State. She was informed in June 2009 that the respondent had decided not to grant her refugee status. She did not challenge that decision by way of judicial review.

• In July 2009 an application for subsidiary protection was submitted on the appellant’s behalf. In June 2011 the respondent determined that she was not eligible for subsidiary protection. The appellant did not challenge that determination by way of judicial review.

• On 27th September, 2011 the respondent made a deportation order (the Deportation Order) in respect of the appellant. The Deportation Order was not challenged.

• On 23rd July, 2012 the appellant’s current solicitors made two parallel applications to the respondent on her behalf, namely:

(a) an application under s. 17(7) of the Refugee Act 1996 (the Act of 1996) for the consent of the respondent to the re-admission of the appellant to the asylum system; and

(b) an application seeking the revocation of the Deportation Order pursuant to s. 3(11) of the Immigration Act 1999 (the Act of 1999).

• As is recorded in the judgment of the High Court, the application under s. 17(7) was based on the appellant’s asserted fear of being subjected to persecution if she was returned to the DRC as a failed asylum seeker. By a decision dated 17th August, 2012 the respondent refused his consent under s. 17(7) of the Act of 1996. Following a review of that decision, by a further decision dated 8th November, 2012 the decision of 17th August, 2012 was affirmed.

• On 22nd November, 2012, the appellant initiated judicial review proceedings in the High Court (Record No. 2012/957 J.R.) (the 2012 Judicial Review Application). The relief sought was an order of certiorari quashing the decision of the respondent dated 8th November, 2012. Before summarising the grounds on which that relief was sought, it is to be noted that Clark J. in the final paragraph of her judgment (para. 55) criticised the manner in which the statements of grounds both in the 2012 Judicial Review Application and in the 2013 Judicial Review Application referred to later were set out, on the basis that they contravened Order 84, rule 20(3) of the Rules of the Superior Courts as amended by S.I. No. 691 of 2011.

• The grounds outlined in the 2012 Judicial Review Application, insofar as relevant, in truncated form were as follows:

(a) that the respondent erred in law and/or in fact in concluding that the information and documentation furnished by the appellant to the respondent on the application to be re-admitted to the asylum process did not amount to “new evidence”;

(b) that the respondent erred in law and/or in fact by relying on findings of lack of credibility on the part of the appellant in her asylum claim, in circumstances where those findings were largely irrelevant to the subject matter of the application to be re-admitted to the asylum process;

(c) that the respondent erred in law and/or in fact in “apparently preferring” statements made by UNHCR in 2006 relating to the treatment of returned failed asylum seekers to the DRC over the more up to date information furnished by the appellant and in failing to provide any “reason [or] rationale” for such apparent preference and by utilising information that was not up to date at the time of the making of the decision;

(d) that the respondent erred in law and/or in fact in relying on the understanding that “when the Irish authorities make arrangements to repatriate persons to the [DRC], no mention is made of them being failed asylum seekers” in the circumstances outlined in that ground;

(e) that the respondent erred in law and/or in fact in “apparently concluding” that failed asylum seekers per se could not comprise a “particular social group” for the purposes of refugee law; and

(f) that the impugned decision was arrived at in breach of the principle of audi alteram partem and the appellant’s right to be heard in circumstances where the appellant in her application for review had stated...