R.W.B. v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] IEHC 370 |
| Docket Number | [2012 No. 819 J.R.] |
| Court | High Court |
| Date | 10 March 2017 |
[2017] IEHC 370
THE HIGH COURT
Faherty J.
[2012 No. 819 J.R.]
Asylum, Immigration & Nationality – S.17(7) of the Refugee Act 1996 – Refusal of application to re-enter asylum process – Deportation – Subsequent return – Persecution as failed asylum seeker – Natural justice – Right to fair procedures
Facts: The applicant was deported out of State as a failed asylum seeker and he returned to the State. Since he was prevented an entry into the State, he was granted a stay on his deportation. The applicant had sought the review of the decision of the respondent wherein the respondent had refused the applicant's application to re-enter the asylum process on the ground that the applicant had not presented any new evidence. At the time of the applicant's deportation, the applicant had already instituted the present proceedings asking for the leave of the Court to seek judicial review of the respondent's decision on the review application. The applicant's main argument was that the rejection of consideration by the applicant of the relevant report that set out the treatment meted out to the failed asylum seeker in the country of origin was unreasonable and unjustified.
Ms. Justice Faherty granted leave to seek judicial review of the decision of the respondent on certain grounds. The Court stated that the decision-maker was obliged to consider the relevant report that the applicant had presented in support of his contention as a failed asylum seeker. The Court observed that the decision-maker was bound to give reasons for preferring other piece of information than what the applicant had submitted. The Court found that the relevant report namely, ‘Ramos Report,’ offered by the applicant had met the threshold set by art. 17(7) of the Refugee Act 1996 as amended by the European Communities (Asylum Procedures) Regulations 2011.
A short extension of time was required for the purpose of the within proceedings which the court was satisfied to grant.
The applicant is a national of the Democratic Republic of Congo (DRC) and he applied for asylum in this State in December, 2008. His application was refused by the Refugee Applications Commissioner, which said refusal was appealed to the Refugee Appeals Tribunal. He had an oral hearing on 28th October, 2009 and by a decision dated 9th November, 2009, the appeal was refused. In January, 2010, the respondent refused the applicant refugee status.
In February, 2010, the applicant's then solicitors submitted an application for subsidiary protection and leave to remain. Both of those applications were refused and a Deportation order was signed on 7th February, 2011. The consideration of file (dated 10th December, 2010), with respect to the leave to remain application had regard, inter alia, to the position of failed asylum seekers on return to the DRC and it was found that country of origin information indicated that ‘no adverse consequences would accrue to the applicant upon return to the Democratic Republic of Congo, for having sought asylum in another country.’
In December, 2011, the applicant's new solicitors made an application for revocation of the Deportation order. They furnished the respondent with a report entitled ‘ Unsafe Return: Refoulement of Congolese Asylum Seekers’ which was published on 24th November, 2011. Its author was Catherine Ramos. The report will hereinafter be referred to as the Ramos report. At the time of the hearing in the within proceedings, counsel for the applicant was unaware of the status of the revocation application. In any event, it is not the subject of the within proceedings.
On 23rd July, 2012, the applicant's solicitors made an application on his behalf for the consent of the respondent for the applicant to re-enter the asylum process pursuant to s. 17(7) of the Refugee Act 1996 (as amended) (‘the 1996 Act’) The basis of the application was a stated fear as to what would befall the applicant as a returning failed asylum seeker to the DRC. The applicant's legal representatives submitted the Ramos report in addition to other documentation. The other documentation comprised:
• An article taken from the Guardian newspaper dated Friday 11th November, 2011 – ‘ Congo civilians beaten for supporting opponents of president, says UN Report’;
• A report from the Refugee Documentation Centre (RDC) dated 15th July, 2010, on ‘ Information regarding the dangers for failed asylum seekers returning to the DRC’;
• A further RDC report dated 3rd June, 2010, entitled ‘ Information on the treatment of MLC members. Whether they continue to be persecuted.’
In the course of the letter of 23rd July, 2012, it was submitted, inter alia, that:
‘All these reports provide overwhelming evidence that the Applicant is indeed a refugee and that if he were to be returned he would be in danger. We respectfully submit that if the Applicant was to be assessed by the Commissioner or the Tribunal now they would come to a different conclusion.’
The primary basis for the application to re-enter was the Ramos report and significant reliance was placed on it. The principal findings in the report were set out in the letter, as follows:
• 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 DRC 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.
• That NGOs and UN cannot access the airport and are not able to “witness” arrests.
• That the UKBA suggestion that returnees should report instances of inhuman and degrading treatment to the British Embassy is not realistic. The Embassy is not easily accessible to people without money for transport. At the end of the road where the Embassy is situated there is a manned military road block. Congolese G4S are on duty at the Embassy's reception windows.
• That some of the content in letters from the Home Office to MPs and MEPs is not accurate. For example, a letter from Immigration Minister, Phil Woolas, pp'd by Lin Homer, states the British Embassy is in touch with Transitional Government which ceased to exist in 2006. Also, information from Baroness Browning in reply to a Question in the House of Lords is not correct. She states the Country of Origin Information for DRC was updated in 2010. It was not updated in 2010 and has not been updated as of November 2011.
• That the issue of failed asylum seekers refouled to inhuman and degrading treatment is considered to be a “complicated” one at European level.
• That MPs in the UK have expressed fears for the safety of refouled Congolese constituents.
The application to re-enter the asylum process was refused by decision dated 16th August, 2012, which issued to the applicant on 17th August, 2012. The findings of the first instance decision-maker was set out in the following terms:
‘I examined the case put forward that the applicant should be re-admitted to the asylum process under Section 17(7) of the Refugee Act, 1996 (as amended).
The applicant's solicitors claim that the decision to refuse their client's asylum claim was based on outdated and inaccurate country of origin information. However, as can clearly be seen from the information under background, the decision to refuse their client's asylum case was largely due to numerous credibility issues that both O.R.A.C. and R.A.T. found in [the applicant's] claim (as outlined in the ‘Background’ section above). No documentation has been submitted which would negate the inconsistencies and numerous issues regarding the applicant's credibility. This submission does not represent fresh new evidence which would merit a re-application to the asylum process.
The applicant's [Solicitors] have submitted country of origin information regarding the treatment of returned asylum seekers to DR Congo. The applicant's Solicitors have also submitted an application under Section 3(11) of the Immigration Act 1999 (as amended) to have their client's Deportation Order revoked. All matters concerning the return of failed asylum seekers to DR Congo will be considered under this application.’
It was concluded that:
‘No new convincing evidence has been supplied to indicate that a favourable view might be taken if [the applicant] was re-admitted to the process. Therefore, I recommend that his application for re-admission…be refused.’
By letter dated 24th August, 2012, the...
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