WA [DRC] v Minister for Justice and Another

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date25 June 2012
Neutral Citation[2012] IEHC 251
CourtHigh Court
Date25 June 2012

[2012] IEHC 251

THE HIGH COURT

[No. 734 J.R./2011]
A (W) [DRC] v Min for Justice & Ors
MR JUSTICE COOKE
APPROVED TEXT
JUDICIAL REVIEW

BETWEEN

W. A. [DRC]
APPLICANT

AND

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

REFUGEE ACT 1996 S13(1)

IMMIGRATION ACT 1999 S3

MAYIE v MIN FOR JUSTICE UNREP COOKE 27.7.2011 (EX TEMPORE)

O (N) v MIN FOR JUSTICE & ORS UNREP RYAN 14.12.2011 2011/13/12250 2011 IEHC 472

J (O) [NIGERIA] v MIN FOR JUSTICE & AG UNREP CROSS 3.2.2012 2012 IEHC 71

M (M) v MIN FOR JUSTICE (NO 1) UNREP HOGAN 18.5.2011 (EX TEMPORE)

M (M) v MIN FOR JUSTICE & ORS UNREP ECJ 22.11.2012 (CASE NO C-277/11)

M (M) v MIN FOR JUSTICE & ORS UNREP ECJ 26.4.2012 (CASE NO C-277/11) (ADVOCATE GENERALS OPINION)

EEC DIR 2004/83 ART 4

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CONSTITUTION ART 34

CONSTITUTION ART 40.3

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

A (MA) v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

N (V) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 16.2.2012 2012 IEHC 62

D (HI) (A MINOR) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 9.2.2011 2011/10/2306 2011 IEHC 33

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP ECJ 6.9.2012 (CASE NO C-175/11) (ADVOCATE GENERALS OPINION)

EEC DIR 2005/85 ART 39

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(3)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(A)

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

EEC DIR 2004/83 ART 6

M (JT) v MIN FOR JUSTICE UNREP CROSS 1.3.2012 2012 IEHC 99

MCADAM COMPLEMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW 2007 20

HATHAWAY THE LAW OF REFUGEE STATUS 1991 133

CONVENTION RELATING TO THE STATUS OF REFUGEES 28.7.1951 ART 33

REFUGEE ACT 1996 S5

EEC DIR 2004/83 CHAPTER VI

EEC DIR 2004/83 CHAPTER VII

EEC DIR 2004/83 ART 7

EEC DIR 2004/83 ART 7(2)

EEC DIR 2004/83 ART 6(C)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION LAW

Subsidiary protection

Asylum application - Fear of persecution - Credibility - International protection - Arguable case - Whether arguable case - Whether real risk of serious harm - Whether failure to provide effective remedy - Whether irrelevant considerations taken into account - Whether failure to take account of relevant considerations - Whether decisions proportionate or reasonable - Whether determination defective - Mayie v Minister for Justice (Unrep, Cooke J, 27/7/2011); O(N) v Minister for Justice [2012] IEHC 472, (Unrep, Ryan J, 14/12/2011); J(O) v Minister for Justice [2012] IEHC 71, (Unrep, Cross J, 3/2/2012); M(M) v Minister for Justice (Unrep, HC, 18/5/2011); M(M) v Minister for Justice (Case C-277/11) (Unrep, ECJ, 22/11/2012); A(BJS) v Minister for Justice [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); A(MA) v Minister for Justice (Unrep, Birmingham J, 24/3/2011); N(V) v Minister for Justice [2012] IEHC 62, (Unrep, Cooke J, 16/2/2012); D(HI) v Refugee Applications Commissioner [2011] IEHC 33, (Unrep, Cooke J, 9/2/2011); A(B) v Refugee Applications Commissioner (Unrep, Cooke J, 9/2/2011); Radio Limerick One Ltd v IRTC [1997] 2 ILRM 1; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and M(JT) v Minister for Justice and Equality [2012] IEHC 99, (Unrep, Cross J, 1/3/2012) considered - Refugee Act 1996 (No 17), ss 5 and 13(1) - Immigration Act 1999 (No 22), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 and 5 - Constitution of Ireland 1937, Arts 34 and 40.3 - Charter of Fundamental Rights and Freedoms , art 47 - Treaty on the Functioning of the European Union, art 267 - Council Directive 2005/85/EC, art 39 - Council Directive 2004/83/EC, arts 6 and 7 - European Convention on Human Rights, art 8 - Leave granted (2011/734JR - Cooke J - 25/6/2012) [2012] IEHC 251

A(W) v Minister for Justice and Equality

Facts regulation 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 provides, inter alia, that:- "The fact that a protection applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, shall be regarded as a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection." The applicant sought leave to, inter alia, have decisions of the respondent refusing his application for subsidiary protection and making a deportation order in respect of him quashed by way of judicial review. He contended, inter alia, that the decision to refuse subsidiary protection was disproportionate and that the respondent had not properly considered his application for subsidiary protection.

Held by Mr Justice Cooke in granting leave to the applicant to seek judicial review on the following terms:- "the respondent erred in fact and in law in the assessment made and the reason given for concluding that the applicant has not been subjected to previous 'serious harm' in DRC as required by Regulation 5(2) of the European Communities (Eligibility for Protection) Regulations 2006" that, 1, subsidiary protection was a form of international protection which, like the status of refugee, accrued to an individual who was found to be in one of the situations coming within the definition of "serious harm" in the European Communities (Eligibility for Protection) Regulations 2006. The conditions which determined whether the applicant was in such a situation were either found to be fulfilled or not. The question of the proportionality of refusing recognition of the existence of the situation did not, therefore, arise. Radio Limerick One Limited v I.R.T C. [1997] 2 ILRM 1 and Meadows v Minister for Justice [2010] 2 IR 701 applied.

2. That an arguable ground arose as to the coherence and adequacy of the assessment and conclusion of the respondent for the purposes of Regulation 5(2) of the European Communities (Eligibility) for Protection) Regulations 2006.

3. That the determination could be arguably said to have ignored and not to have answered the specific claim made in the application for subsidiary protection that, based on country of origin information as cited, returned asylum seekers faced a risk of detention, interrogation and torture such as would amount to "serious harm" within the definition contained in regulation 5(2).

4. That, as the validity of the deportation order depended on the a priori validity of the assessment of subsidiary protection, leave would also be granted to seek the judicial review of the deportation order.

1

1. In the motion before the Court the applicant seeks leave to apply for judicial review of a decision of the first named respondent of the 1 st April, 2011, refusing the applicant's application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006, ("the 2006 Regulations") and of a deportation order subsequently made in respect of the applicant on the 15 th July, 2011.

THE ASYLUM PROCESS.
2

2. The applicant is a national of the Democratic Republic of Congo (DRC) who arrived in the State in November 2009, and claimed asylum. In a report dated the 8 th March, 2010, under s. 13(1) of the Refugee Act 1996 (as amended) the Office of the Refugee Commissioner gave a negative recommendation upon the asylum application. This recommendation was based upon the primary conclusion that the account given by the applicant as the basis of his fear of persecution lacked credibility. The authorised officers also concluded that, were his claim considered credible, internal relocation within the DRC might not be a viable option for him by way of protection.

3

3. On appeal the negative recommendation of the Commissioner was affirmed by the Tribunal in a decision of 30 th June, 2010. The applicant's claim to a fear of persecution was based upon his membership of and activities in a political organisation called the MLC and particularly his involvement in a demonstration in March 2007, following the national elections when the President of the MLC, Bemba, was considered to have won, but the incumbent, President Kabila, refused to hand over power. He claimed that he had been arrested following the demonstration and was detained for nearly two years in a prison camp where he was interrogated and tortured. He claims he escaped only because his sister was able to sell a house and give part of the proceeds to an army general who arranged his escape and introduced him to a Nigerian who brought him to Ireland through the United Kingdom. In a detailed consideration of the evidence given by the applicant, the Tribunal member also concluded that, while there was country of origin information confirming that such demonstrations had taken place, the applicant's claim to have...

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