S.S.L. v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 10 September 2013
• Neutral Citation: [2013] IEHC 421
• Docket Number: [No. 830 J.R./2011]
• Court: High Court
• Date: 10 September 2013

[2013] IEHC 421

THE HIGH COURT

[No. 830 J.R./2011]

L (SS) v Min for Justice & AG

JUDICIAL REVIEW

BETWEEN

S.S.L.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

N (FR) & ORS v MIN FOR JUSTICE & ORS 2009 1 IR 88 2008/45/9787 2008 IEHC 107

EEC DIR 2004/83 RECITAL 26

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 8

A (W) [DRC] v MIN FOR JUSTICE & ORS UNREP COOKE 25.6.2012 2012 IEHC 251

EEC DIR 2004/83 ART 6

EEC DIR 2004/83 ART 7

Judicial Review – Refugee status - Deportation - Application for subsidiary protection refused - Country of origin information - Documentary evidence - Protection from serious harm - State protection - Consideration - Irrationality - Refugee Act 1996

Facts: The applicant was originally from the Democratic Republic of Congo. He applied for asylum upon arrival in Ireland on or about the 30th October 2009, but his application before the Refugee Applications Commissioner was rejected on the basis of negative credibility findings. He claimed that his parents were murdered by government forces when he was four years old because of their participation in a demonstration against President Kabila. Similarly, he alleged that government agents murdered his sister in 2005. He claimed that he feared political persecution if returned to his native country, and that he had been in hiding from government agents since around 2001, which eventually prompted him to leave the country. The applicant subsequently made a claim for subsidiary protection on a number of grounds, which included the assertion that state protection would not be available to him if he was returned to his country of origin, but this was also rejected by a decision dated the 5^th May 2012. The first named respondent then issued a deportation order against him on the 25th August 2011.

Leave to apply for judicial review challenging the validity of the decisions to refuse subsidiary protection and to make a deportation order was subsequently sought and granted. The applicant”s ground for judicial review was that in respect of his argument that state protection would not be available if he was returned to his native country, the representations he made and the country of origin consulted were read by the decision maker in an unbalanced manner, which resulted in an irrational conclusion. It had been determined that although corruption and human rights abuses remained a problem within the Congolese police force and that internal armed conflict continued within the country, the Kinshasa region was relatively peaceful at that time with a well trained and resourced police force governing it. It was said that the Kinshasa region was available for internal relocation. In support of the subsidiary protection application, the applicant had relied upon the United States Department of State”s ‘2008 Human Rights Report – Democratic Republic of Congo’ dated the 11th March 2010 and the Human Rights Watch”s report entitled ‘Country Summary – Democratic Republic of Congo 2010’. The applicant averred that on a full and proper consideration of the country of origin evidence available, the conclusion that the first named respondent had come to could only be described as irrational.

The first named respondent argued that the finding on state protection was redundant because there had been no determination that there was a real risk of serious harm to the applicant if he was returned to his home country. The applicant had sought leave to apply for judicial review on this latter ground, but this had been rejected.

Held by McDermott J that if the conclusion reached by the first named respondent on the issue of state protection was found to be irrational or unreasonable, it may be said that it affected the earlier conclusion that the applicant was not at a real risk of serious harm or violence of an indiscriminate nature.

On consideration of the country of origin information, it was said that it was clear that the rule of law was virtually non-existent outside the Kinshasa region. However, it was also said that there had been numerous incidents in the Kinshasa region in recent years where police violently suppressed political opposition resulting in hundreds of deaths. It was also apparent that political corruption was rife and that the judicial system had almost collapsed. On that basis, it was said that the first named respondent”s conclusion that the applicant could safely return to the Kinshasa was irrational and illogical. As a result, it was also said that the applicant was at risk of serious harm or violence of an indiscriminate nature if he was returned to his native country. This risk was said to be intensified by the fact that not only was the state unlikely to adequately protect the applicant, but because undisciplined state forces also presented the same risk to him. An order of certiorari quashing the subsidiary protection decision was therefore made. The first named respondent had previously conceded to a review of the deportation order if such an order was made, therefore the deportation order was also quashed.

Orders of certiorari quashing the subsidiary protection decision and the deportation order made.

Mr. Justice McDermott

1 The applicant is a national of the Democratic Republic of Congo (DRC) who arrived in the state on or about 30^th October, 2009, and applied for asylum. The application was refused by the Refugee Appeals Tribunal on 8^th May, 2010, and the applicant was duly notified that the Minister for Justice and Equality (the first named respondent) was proposing to make a deportation order against him which ultimately issued on 25^th August, 2011. He received notification of this order on or about 29^th August.

2 The applicant made an application for subsidiary protection on 16^th July, 2010, together with an application for leave to remain in the state pursuant to s. 3 of the Immigration Act 1999. On 10^th May, 2011, the applicant received a determination dated 5^th May refusing the subsidiary protection application.

3 By notice of motion dated 8^th September, 2011, the applicant made an application for leave to apply for judicial review.

4 By order of 27^th March, 2012 (Cross J.), the applicant was granted leave to apply for an order of certiorari in respect of the decision of 5^th May, 2011, and to quash the deportation order issued in respect of the applicant dated 18^th August, 2011. This application was granted on a single ground namely:-

"The representations made, and the country information consulted, were read selectively against the applicant's interests and the conclusions reached were irrational."

5 The applicant was born on 23^rd December, 1987. His claim for refugee status was based on a fear of political persecution in the Democratic Republic of Congo. He was from the Matadi area in the west of the country. He claimed that his parents were killed when he was four and that he had been informed that they had been murdered by government forces following their participation in a demonstration against President Kabila, in the course of which they were arrested.

6 He claimed that his own difficulties commenced in 2000. He was working as a mechanic in Matadi. He gave quite a confused and vague account of how unspecified government forces sought him out and tried to kill him. He claimed that he went on the run for about seven years until he came to Ireland on 7^th October, 2009. He claimed that his sister was killed in 2005 by persons whom he believed to be agents of the Kabila regime. He claimed that he had been stopped on a number of occasions by soldiers and punched. The first such incident occurred when he was thirteen and the last one occurred in 2007.

7 Having left the Democratic Republic of Congo the applicant went to Lusaka, Zambia remaining there for 21 days. He met a man who arranged his passage to Ireland. He arrivedvia Ethiopia and Frankfurt, Germany. He was abandoned by this man following his arrival in Ireland. In the course of his application for asylum he gave a number of accounts of the death of his siblings which were regarded as incredible. He gave different accounts as to how and why his parents were killed. He gave entirely inconsistent accounts of the number of times and circumstances in which he had been accosted by government forces. The applicant's description of these events was disbelieved by the Refugee Applications Commissioner and the Refugee Appeals Tribunal.

8 An application for subsidiary protection was made by the applicant on 15^th October, 2010, on the basis that he was at real risk of suffering the death penalty or execution or torture or inhuman or degrading treatment or punishment if returned to the Democratic Republic of Congo, and that there was a serious and individual threat to his life as a civilian by reason of indiscriminate violence in a situation of international or internal armed conflict. The application was grounded upon the same account and evidence furnished by the applicant in his asylum application. It was submitted that attacks previously suffered by the applicant supported his contention that he was at real risk of serious harm if returned and that this was supported by country of origin information.

9 The applicant relied in particular on two sources. United States Department of State"2008 Human Rights Report - Democratic Republic of Congo" dated 11^th March, 2010, contains a detailed account of the abject failure of the government to uphold and respect human rights. Its forces behaved appallingly throughout the country:-

"In all areas of the country, the...