PBN v Minister for Justice and Equality

JurisdictionIreland
JudgeMs. Justice Faherty
Judgment Date02 June 2016
Neutral Citation[2016] IEHC 316
Date02 June 2016
CourtHigh Court
Docket Number[2012 No. 957 I.R.]
BETWEEN
P. B. N.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
DEFENDANT

[2016] IEHC 316

Faherty J.

[2012 No. 957 I.R.]

[2013 No. 292 J.R.]

THE HIGH COURT

Asylum, Immigration & Nationality – S. 17 (7) of the Refugee Act, 1996 – Permission to re-enter asylum process – Fear of persecution of failed asylum seeker – Art. 3 of the European Convention on Human Rights (ECHR) – Revocation of deportation order – Existence of new evidence – Reliability of expert report

Facts: Following the denial of the respondent for re-admission of the applicant into asylum process on review, ('review decision') and the subsequent decision of refusal to revoke the deportation order ('revocation decision'), the applicant sought a judicial review of both decisions. The applicant contended that the decision maker in the review decision had not provided the reasons for its decision and had not considered the new evidence in the form of an expert report on the persecution of the failed asylum seeker in the applicant's country of origin. The respondent contended that the applicant had the opportunity to advance that report at the time of making the original asylum application and thus, the respondent was not required to consider the same. The applicant contended that the decision-maker in the revocation decision had discounted the report furnished by the applicant without any basis and thus, made an error while making an assessment of materials placed before it. The respondent contended that the decision-maker in the revocation decision had very carefully assessed that report presented by the applicant, which upon inquiry was found not to be credible and reliable as per guidelines prescribed under UNHCR and Austrian Centre for Country of Origin and Asylum Research and Documentation (Accord) in relation to the source assessment.

Ms. Justice Faherty refused to grant an order of certiorari for quashing the review decision notwithstanding the fact that it was fraught with procedural errors. The Court, however, granted an order of certiorari in relation to the revocation decision for reconsideration in part without reopening the other considerations set out in the revocation decision. The Court held that the relief granted in the revocation decision was limited to the extent of determination of risk, if any, faced by the applicant/failed asylum seeker in case of her deportation in the country of origin with the history of exited the country of origin on a false passport by making assessment under s. 5 of the Refugee Act, 1996 and art. 3 of ECHR. The Court held that the review decision suffered infirmity as it was not clear on what basis the decision-maker had refused the application of the applicant. The Court found that the decision maker had not specified whether he had taken into the account the alleged report presented by the applicant as a piece of new evidence or made an observation regarding lack of new evidence or drew inferences from a different comparator in relation to country of origin information. The Court, however, held that the revocation decision was made by taking into account appropriate procedures and the decision—maker in that instance had correctly rejected the report provided by the applicant as it failed to conform to the prescribed standards formulated for authentication of sources for information. The Court, however, found that in relation to the revocation decision, the decision-maker was bound to conduct an inquiry as to whether the applicant was likely to be persecuted in the country of origin for travelling on fake passport in the light of clear country of origin information of imposition of criminal sanctions by the concerned authorities to fake passport holders, which attract the applicability of s. 5 of the Refugee Act, 1996, and art. 3 of ECHR. The Court held that despite the rejection of the applicant's claim to have entered the State on fake passport by the Refugee Appeals Tribunal, the respondent was obliged to assess the existence of an objective basis of fear as mandated under s. 5 of the Act of 1996 and art. 3 of ECHR.

JUDGMENT of Ms. Justice Faherty delivered on the 2nd day of June, 2016
1

The applicant is a citizen of the Democratic Republic of Congo (DRC). She arrived in the state in 2007 and sought asylum.

2

Her claimed circumstances related to her work as secretary to an Admiral in the Congolese Armed Forces. She stated that in 2006 differences arose between her employer and the Generals from the east of the country. She was then asked by a Government Minister, also a General from the east, to come and work for him and to administer poison to the Admiral, her then employer. She claimed that when she refused she was arrested detained and ill-treated. She was ultimately released and fled to Congo Brazzaville. After a couple of months there she arrived in Ireland and applied for asylum in December, 2007. Both the Refugee Applications Commissioner (RAC) and the Refugee Appeals Tribunal made negative credibility findings in relation to her claim and in June 2009 she was informed by the respondent that she was not to be granted refugee status. She did not challenge the Tribunal decision by way of judicial review.

3

On 7th July, 2009, the applicant's then solicitors applied for leave to remain on her behalf and on 17th July, 2009 they submitted a subsidiary protection application. Both applications referred to extracts from country of origin information reports which were dated between 2005 and 2007 and which addressed the treatment of failed asylum seekers on their return to the DRC. In March 2010, several personal testimonials were forwarded on the applicant's behalf by a different firm of solicitors who had come on record for her together with a letter from the applicant dated September, 2009 stating that her life would be in danger in the DRC as a failed asylum seeker. Further testimonials were furnished in May and August 2010, together with additional country of origin information relating to general human rights violations in the DRC. In June, 2011 the Minister determined that the applicant was not eligible for subsidiary protection. That decision noted that the claimed risk faced by returned failed asylum seekers to the DRC had been the subject of debate in the U.K. but in December, 2008 the UK Court of Appeal upheld a determination of the Asylum and Immigration Tribunal (AIT) dated 18th December, 2007 which found that failed asylum seekers did not per se face a risk of prosecution or serious harm on return to the DRC. It also noted a letter from the British Embassy in Kinshasa dated 23rd June 2009 which stated that while all passengers entering the DRC were liable to be questioned by immigration authorities the Embassy had no evidence that returning failed asylum seekers either from the U.K. or any other country were specifically targeted by the DRC authorities. The subsidiary decision-maker's reasoning also relied on the credibility findings which had been made by the Tribunal. The applicant did not challenge the subsidiary protection decision by way of judicial review.

4

Shortly after the subsidiary protection decision was notified, further country of origin information relating to the general situation in the DRC was furnished to the Minister in support of the leave to remain application.

5

The applicant's file was examined by the Minister's officials in August 2011. It included a consideration at to whether the return of the applicant to the DRC would attract the prohibition on refoulement or the entitlement to Art.3 ECHR protections. It was ultimately determined that although some categories of people were likely to face torture, inhuman or degrading treatment upon return to the DRC the applicant did not come within those categories. Thus, following the refusal for leave to remain on humanitarian grounds the Minister made a deportation order in respect of the applicant on 27th September, 2011. No challenge was brought against the deportation order.

6

In November 2011, a report entitled (Unsafe Return – refoulement of Congolese asylum seekers) was published by Justice First, a UK charity. Its author was Catherine Ramos. The report sought effectively 'to test the UKBA hypothesis of safety of return [to the DRC] for rejected asylum seekers'

The report's conclusions were:

• That decisions since 2006 refusing protection to Congolese asylum seekers have been flawed and, consequently, have resulted in people being unjustly removed back to inhuman and degrading treatment.

• That the UKBA hypothesis that it is safe to return people to the DRC is unsound.

• That there is no effective monitoring of those refouled to DRV and unsuccessful asylum seekers do fall outside the mandate of the UNHCR.

• That when inhuman and degrading treatment has been reported to NGOs this information has not been acted on nor shared and is being used as "information" only.

• That a policy exists to punish asylum seekers who are suspected of having spoken out about having been ill treated in the DRC and the lack of human rights in the DRC, thereby, betraying their country and the President.

• That the travel document identifies failed asylum seekers and therefore places them at further risk on return.

• That returnees are not able to resume family life nor to live in safety.

• That children are at risk of imprisonment upon return.

• That those refouled to the DRC on a travel document are suspected of having left on a false passport, an offence which will be punished by imprisonment.

• That returnees who have been arrested and subjected to inhuman and degrading treatment are frightened to approach NGOs which, they believe, are being monitored by the state security services. A belief reinforced by the death of Floribert Chebeya, President of Voix des Sans Voix.

...

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