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

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 25 February 2015
• Neutral Citation: [2015] IEHC 124
• Court: High Court
• Date: 25 February 2015

[2015] IEHC 124

THE HIGH COURT

[957 J.R./No. 2012]

[292 J.R./No. 2013]

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

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

P.B.N. (DR CONGO)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

Asylum – Immigration & Nationality – Refusal of asylum claim & subsidiary protection – Fear of persecution – S. 17 (7) of the Refugee Act 1996 – S. 3 (11) of the Immigration Act 1999 – Readmission to asylum – Credibility of evidence – Failed asylum seeker – Fair hearing

Facts: Following the refusal of the first named respondent to provide subsidiary protection to the applicant, the applicant made two applications; one under s. 17 (7) of the Refugee Act 1996 for consent to re-enter the asylum process and other under s. 3 (11) of the Immigration Act 1999 for revocation of deportation order, both of which were refused and the applicant now came to the Court challenging those decisions in the light of existence of new information regarding country of origin information supporting the applicant's fear of being mistreated in the country of origin having the status of a failed asylum seeker.

Mr. Justice Barr granted an order to the applicant to seek certiorari by way of judicial review against the first named respondent regarding re-admission to the asylum process. The Court granted an order to the applicant to seek certiorari by way of judicial review regarding revocation of the deportation of the applicant. The Court held that the new piece of evidence significantly highlighted the mistreatment meted out to the failed asylum seekers from UK to Congo with incidents of rape, tortures and beatings and first respondent must have gleaned it carefully. The Court found that the evidence forwarded by the applicant seemed cogent and thus reliable. The Court held that the first named respondent failed to inquire on its own about the fate that the applicant would likely meet if deported to the country of origin. The Court held that the involvement of the first respondent in the proceedings would likely result in a biased and preconceived opinion, which would be against the principle of fair hearing.

Background

1 1. The applicant is a citizen of the Democratic Republic of Congo (DRC) and was bom in 1962. She is from Kinshasa, is of the Luba tribe and has three children. She is divorced from her husband. Her story related to her work as secretary to an admiral in the Congolese armed forces.

2 2. The applicant worked for an admiral who, like the former leader Mr. Mobutu, came from Equateur province. In 2006, differences arose between her employer and the generals from the east of the country who were supported by President Kabila. The applicant was asked by the Minister for the Interior, also a general from the east, to come and work for him, and to administer poison to the admiral. When she refused, she was arrested, detained and ill-treated. She was released on the order of another general and fled to Congo-Brazzaville. After 50 days there, she came to Ireland.

3 3. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal made negative credibility findings in relation to her account and she was informed in June 2009 that the Minister had decided not to grant her refugee status. She did not challenge that decision by way of judicial review.

4 4. The applicant was subsequently refused subsidiary protection in June 2011 and was refused leave to remain on humanitarian grounds. A deportation order was made in respect of the applicant on 27 ^th September, 2011.

5 5. Subsequently, in November 2011, a report entitled "Unsafe Return-Refoulement of Congolese Asylum Seekers" was published. The applicant submitted that this report was prima facie new material relevant to the safety of returnees to the DRC.

6 6. In July 2012, applications were made by the applicant's present solicitors for consent to re-enter the asylum process pursuant to s. 17(7) of the Refugee Act 1996, as amended, and for the revocation of the deportation order, pursuant to s. 3(11) of the Immigration Act 1999. These applications were largely based on the then recent findings of the "Unsafe Return" report. Both applications were refused and the refusals were each challenged in the two sets of proceedings which are now before the court.

7 7. It should also be noted that an application for an interlocutory injunction restraining the deportation of the applicant pending the determination of these proceedings, was refused in a judgment of the High Court of 16 ^th September, 2013. An appeal to the Supreme Court in respect of the refusal of interlocutory relief by the High Court was allowed and judgment was delivered by the Supreme Court on 21 ^st February, 2014.

The Present Proceedings

8 8. On 23 ^rd July, 2012, the applicant made two applications. The first was a request pursuant to s. 17(7) of the Refugee Act 1996 (as amended) (Record No. 2012/5957 J.R.) for readmission to the asylum process. The second set of proceedings concerned an application pursuant to s. 3(11) of the Immigration Act 1999 (Record No. 213/292 J.R.) for revocation of the deportation order.

9 9. In the letter submitting the application for readmission to the asylum process, the applicant's solicitors maintained that the determination to refuse the applicant refugee status was fundamentally flawed in that it was based on outdated and inaccurate country of origin information (COI). The applicant's solicitors enclosed further "new" documentation as follows:-

"Unsafe Return Refoulement of Congolese Asylum Seekers by Catherine Ramos."

Article taken from the Guardian newspaper dated Friday, 11 ^th November, 2011 - Congo Civilians Beaten for Supporting Opponents of President, says UN Report."

10 10. The applicant also submitted two reports from the Refugee Documentation Centre of Ireland as follows:-

2 2 "1. Refugee Documentations Centre (Ireland) 15 ^th July, 2010 - information regarding the dangers for failed asylum seekers returning to the DRC.

2 2. Refugee Documentation Centre (Ireland) 3 ^rd June, 2010 - information on the treatment of MLC Members. Whether they continue to be persecuted."

11 11. It was submitted that these reports provided evidence that the applicant was indeed a refugee and that if she were returned to the DRC she would be in danger. It was submitted that if the applicant were to be assessed by the Commissioner or the Tribunal at that time, they would come to a different conclusion to that already reached by them.

12 12. The application pursuant to s. 3(11) of the Immigration Act 1999, was an application to revoke the deportation order based on changed circumstances. In a letter dated 23 ^rd July, 2012, the applicant submitted that there had been a deterioration in the DRC and a deterioration in the treatment faced by failed asylum seekers. The applicant's solicitors advised that the DRC was extremely dangerous especially in relation to refoulement of Congolese asylum seekers. They enclosed the following up to date COI:-

· Report entitled Unsafe Return Refoulement of Congolese Asylum Seekers

· Article taken from the Guardian newspaper dated Friday, 11 ^th November, 2011 - Congo Civilians Beaten for Supporting Opponents of President, says UN Report.

· Access to healthcare, mortality and violence in Democratic Republic of Congo - results of five epidemiological surveys: Kilwa, Inonogo, Basankusu, Lubutu, Bunkeya March to May 2005.

· Article fi'om BBC News - DR Congo's Child Minor Shame.

· Article from the Guardian newspaper dated Monday 29 ^th September, 2008 - Congo Child's Soldiers Re-enlisted

· Refugee Documentation Centre (Ireland) 15/7/2010 - information regarding the dangers for failed asylum seekers returning to the DRC.

· Refugee Documentation Centre (Ireland) 3/6/2010 - information on the treatment of MLC members; whether they continued to be persecuted.

13 13. The letter set out the conclusions and recommendations from the Unsafe Return report. They also quoted from a US State Department Human Rights Report headed US Department of State 2009 Human Rights Report - Democratic Republic of Congo dated 11 ^th March, 2010 and they referred to a report from Human Rights Watch entitled " Human Rights Watch - Country Summary - Democratic Republic of Congo" dated 2010. The solicitors also cited the duration of residence in the State of the applicant as being a relevant factor to be taken into consideration by the Minister.

14 14. The s. 17(7) application was initially considered by Ms. Martina Ennis of the Ministerial Decisions Unit on 17 ^th August, 2012. She formed the opinion that the submissions and documentation submitted by the applicant did not represent new evidence which would merit her readmission to the asylum process. The applicant's claims in relation to mistreatment of returned failed asylum seekers to the Congo, would be considered in the context of the s. 3(11) application.

15 15. By letter dated 25 ^th October, 2012, the applicant through her solicitor sought a review of that decision. That review was carried out by Mr. Dennis Byrne of the Ministerial Decisions Unit on 8 ^th November, 2012. Having reviewed the background to the applicant's application, he came to the conclusion that no new evidence had been furnished and that her application for readmission under s. 17(7) of the Refugee Act 1996 (as amended) should be refused.

16 16. In the s. 3(11) application, an examination of the file was carried out by Mr. Mark Dunne, Executive Officer in the Repatriation Unit on 5 ^th February, 2013. He had the following to say in relation to the Unsafe Return report:-

"The Catherine Ramos Report appears to be concerned with failed asylum seekers mainly from the Tees Valley area of the UK but otherwise its provenance appears uncertain. The report relies...