A.W. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IEHC 111
• Judgment citation (vLex): [2016] 2 JIC 1516
• Docket Number: [2013 No. 928 J.R.]
• Court: High Court
• Date: 15 February 2016

[2016] IEHC 111

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2013 No. 928 J.R.]

BETWEEN

A.W.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – The Immigration Act 1999 – Judicial review – Refusal of subsidiary protection – S. 5 of the Refugee Act 1996 – Non-refoulement – Art. 33 of the Refugee Convention, 1951

Facts: The applicant sought an order for quashing the second deportation order made by the respondent subsequent to the quashing of the first deportation order and a direction by the Court to reconsider the matter upon filing of the second judicial review application by the applicant. The respondent contended that no sufficient risk of refoulement had been established under s. 5 of the Refugee Act 1996 for warranting the revocation of the deportation order. The applicant submitted that the respondent by failing to give due consideration to a particular document showing gender-based violence in the country of origin had acted in contravention of the non-refoulement principle under s. 5 of the Act of 1996 reflecting the spirit of art. 33 (1) of the Refugee Convention, 1951. The applicant contended that the respondent instead of forming a fresh view on credibility had opted to remain bound by the credibility findings made by the Refugee Appeals Tribunal.

Mr. Justice Richard Humphreys refused to grant the desired relief to the applicant. The Court, however, granted leave on a limited ground. The Court held that the decision of the respondent did not suffer from any infirmity and that the respondent exercising the executive power of the State was not obliged to reconsider the findings reached in the asylum process. The Court held that it was the discretion of the respondent to consider the relevant material placed before it concerning the country of origin information. The Court found that the objection of the applicant that upon her return to the country of origin, she would be kept as a detainee for a short period of time could not be sustained as brief routine detention was not a type of threat envisaged under s. 5 of the Act of 1996. The Court held that said art. 33 of the 1951 Convention applied to asylum seekers at the initial stage of examination of their claim and not to asylum seekers who failed to establish well-founded fear of persecution at the appropriate forum. The Court found that the respondent was correct in her findings that there was no risk of refoulement in the present case after making appropriate assessment of country of origin information.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2016

1 The applicant was born in the Democratic Republic of Congo in 1963. Prior to coming to Ireland, she lived in Kinshasa.

2 On 23rd October, 2007, she applied for a UK visa in a false name. This visa was issued, valid for a six month period from that date, expiring on 23rd April, 2008. This visa application was not disclosed in her original asylum application, and came to light from information furnished by the UK Border Agency to the respondent.

3 On either 20th or 23rd April, 2008 (depending on which version of the applicant's story is to be accepted), she says she left the D.R.C. with the assistance of a people-trafficker. She says she arrived in Ireland on 24th April, 2008. She then made a claim for asylum, which was rejected by the Refugee Applications Commissioner of 6th September, 2008.

4 This refusal was appealed to the Refugee Appeals Tribunal which rejected the appeal in a decision dated 20th October, 2009. The rejection was based primarily on a finding of a lack of credibility on the part of the applicant, the tribunal member referring in particular to having had the opportunity of seeing the applicant give evidence and of her failing to deal with inconsistencies in that evidence.

5 On 29th January, 2010, the applicant sought subsidiary protection and simultaneously made representations for leave to remain under s. 3 of the Immigration Act 1999.

6 The subsidiary protection application was rejected by the Minister on 8th June, 2011. She made further submissions seeking a review of the subsidiary protection refusal and leave to remain, by letter dated 16th June, 2011. She then applied for judicial review of the refusal of subsidiary protection. An order giving leave in that behalf was made by Birmingham J. on 4th July, 2011.

7 In A.W. v. Minister for Justice and Equality (No. 1) (Unreported, High Court, 30th March, 2012), Cooke J. dismissed the first judicial review proceedings.

8 Following that decision, the applicant made further submissions under s. 3 of the 1999 Act by letter dated 12th April, 2012.

9 Following consideration of the applicant's submissions, the Minister made a first deportation order on 19th February, 2013. This prompted a second judicial review application by the applicant seeking to quash that deportation order. Those proceedings were settled before the hearing of the leave application, on the basis that the Minister would revoke the deportation order and consider further submissions.

10 The first deportation order was revoked by order dated 28th May, 2013. Following that, the applicant made further submissions under s. 3 of the 1999 Act and also in relation to subsidiary protection although that application had already been finally determined at that point.

11 The Minister then made a second deportation order, dated 5th November, 2013. This was transmitted to the applicant by letter dated 14th November, 2013, which she says she received on 18th November, 2013. The present proceedings, the third judicial review proceedings brought by the applicant, were instituted on 10th December, 2013, slightly out of time. By consent of the parties, I will make an order extending time.

12 As can be seen from the foregoing, the applicant was found not to be credible by the tribunal. The Minister placed reliance on this credibility finding. The Minister was satisfied that there was no sufficient risk of refoulement under s. 5 of the Refugee Act 1996. There are therefore, in essence, two elements to the present challenge:

(i) Was the Minister's approach to credibility unlawful?

(ii) If not, was the approach to the risk of refoulement based on factors other than credibility (i.e., her status as a failed asylum seeker being returned to D.R.C.) unlawful?

13 Before addressing those questions it is necessary to examine the nature of an assessment under s. 5 of the Refugee Act 1996.

The approach to s. 5 of the 1996 Act

14 The question of compliance with s. 5 will arise in every deportation case. Given that there must be a workable deportation system, the bar to be set by the court for challenges on the grounds of non-compliance with s. 5 cannot be unreasonably high. Leaving aside a case where there is an allegation of a failure to consider s. 5 at all, which is highly unlikely to be capable of being established seeing as it is routine for the deportation order and considerations to refer to it, Clarke J. in Kouaype v. Minister for Justice [2005] IEHC 380, held ‘ it would require very special circumstances’ to challenge a s. 5 determination unless ‘ the Minister could not reasonably have come to the view which he did’ and that ‘ it is unlikely that such circumstances could arise in practice in most cases of failed asylum seekers given that there will already be a determination after a quasi-judicial process which will in substance amount to a finding that the prohibition contained in s. 5 of the Act of 1996 does not arise’. Clarke J. also referred specifically to an obligation on the Minister to consider any change in circumstances since such earlier decision.

15 In Meadows v. Minister for Justice [2010] 2 I.R. 701, Murray C.J. stated at para. 78 that if there is no ‘ claim or factual material’ put forward supporting a s. 5 risk, then the s. 5 decision ‘ is a mere formality and the rationale of the decision will be self-evident’. He went on to say at para. 80 that ‘ if such material has been presented to him by or on behalf of the proposed deportee… the first respondent must specifically address that issue and form an opinion’. Given that the Minister is likely to ‘ address’ the issue of s. 5 in more or less every case, I infer from what is said by Murray C.J. at para. 80 that some form of narrative discussion of the issue is required above and beyond mere consideration of s. 5. At para. 87, he went on to say that ‘ at the very least the rationale underlying the decision must be discernible expressly or inferentially’.

16 The ratio of the decision is set out at paras. 93 to 98 where Murray C.J. finds that ‘ the decision of the Minister in the terms couched was so vague and opaque that its underlying rationale could not be properly or reasonably deduced’. A statement that refoulement was found not to be an issue did not clearly identify whether the Minister was of the view that it was not an issue at all, or that there was some risk but a remote one or that there was some evidence of supporting it but that evidence could be rejected.

17 In F.N. v. Minister for Justice, Equality and Law Reform [2009] 1 I.R. 88 at para. 45, p. 116, Charleton J. emphasised that in considering a s. 5 claim, the Minister must first consider if ‘ the claim made is the same in substance’ as that which has failed in the asylum process. If not, he stated that the Minister must ‘ consider it fairly’. It appears to follow from this approach that if a claim is a repeat of the asylum claim, the Minister would be entitled to reject it on the grounds that the asylum claim had been rejected.

18 In T.K. v. Minister for Justice, Equality and Law Reform [2011] IEHC 99, Hogan J. considered at para. 26 that in this context it was ‘ irrelevant that both the Commissioner and the Tribunal rejected the...