Judgment Title: E. D-N, L. D. S (a minor suing through his mother and next friend E. D-N) and Anor v The Minister for Justice & Equality
Neutral Citation:  IEHC 447
High Court Record Number: 2011 758 JR
Date of Delivery: 20/09/2013
Court: High Court
Composition of Court:
Judgment by: Mac Eochaidh J.
Status of Judgment: Approved
Neutral Citation:  IEHC 447
THE HIGH COURT
[2011 No. 758 J.R.]
E. D-N, L. D. S. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND E. D-N) AND M. D. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND E. D-N)
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 20th day of September 2013
1. This is an application for judicial review of a refusal by the Minister for Justice and Equality to grant subsidiary protection to the applicant (and her minor children). Leave to seek judicial review was granted on 22nd August 2011, by Hedigan J. The grounds of complaint advanced on behalf of the applicant can be summarised as follows:
b. The Minister ought to have conducted his own assessment of the credibility of the applicant, not only because the borrowed findings from the RAT are marginal, but because the application for subsidiary protection is a freestanding process.
c. The Minister accepted that State protection was not available and concluded that UN sanctioned forces stationed in the Democratic Republic of Congo, could protect the applicant. It is argued that protection by an international organisation not in control of the territory is insufficient for the purposes of the Directive and the Protection Regulations.
2. The applicant was born in 1968 in the Democratic Republic of Congo. She married the father of her children in 1999. She says that he is a high level member of the Movement for the Liberation of Congo, an important political group. She said that serious unrest occurred in Kinshasa on 22nd and 23rd March 2007 and the first named applicant was arrested on 24th March 2007. She says that she has had no contact with him since that day. She does not know if he is still in custody or if he has been released. Following the arrest of her husband the Congolese authorities harassed the applicant and put a gun to her head and to the head of one of her children. She decided to leave her country on 31st May 2007.
3. She applied for refugee status on the 6th June 2007. She completed the application for refugee status questionnaire on 14th June 2007 and a Memorandum of Interview with the Refugee Applications Commissioner was completed and dated 13th September 2007. A report of the Refugee Applications Commissioner into her claim for asylum is dated 18th September 2007. Such status having been refused, she appealed to the Refugee Appeals Tribunal which delivered a decision on 18th December 2008.
4. The Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner declining refugee status to the applicant. Significant credibility findings are given as the reason for the negative outcome. The conclusion is stated as follows:
The Minister's Decision
(b) torture or inhuman or degrading treatment or punishment... or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal am1ed conflict.".
11. Having set out some quotations from the country of origin information, the author says:
16. The Minister's decision then proceeds to deal with the second basis on which international protection is sought - fear of indiscriminate violence arising from armed conflict. Country of origin information is examined in connection with the claim. The Minister's response is that no such circumstances pertain and that state protection and/or internal relocation is available. The Minister's conclusion is that it is not accepted that the applicant runs a real risk of serious and individual threat by reason of indiscriminate violence in a situation of armed conflict.
17. The next paragraph of the decision is significant, stating:
Overall, and having regard to all the facts on file, I am not satisfied that the applicant has demonstrated that she is without protection in DR Congo and I do not find that there are substantial grounds for believing that the applicant would be at risk of serious harm by torture or inhuman or degrading treatment in DR Congo if she returned there."
20. The next section of the Minister's decision is described as follows:
22. Section 5(1)(c) of the Regulations is a rule which requires the Minister to take the following into account:
24. The next section of the decision is entitled:
"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."
27. Section (viii) of the decision is entitled:
The Effect of M.M. v. Minister for Justice
30. During the course of these proceedings it became clear that the decision of the European Court of Justice (“ECJ”) in the case of M.M. v. minister for Justice, Equality and Law Reform (Case C-277/11) was directly relevant to the case herein. The case was adjourned pending the delivery of the decision of Hogan J. in M.M. v. Minister for Justice, Equality and Law Reform  IEHC 9. Supplemental submissions in respect of the decision of Hogan J. in M.M. were usefully provided to the court by counsel and that remaining aspect of the case was heard on 2nd May 2013.
31. Counsel for the applicant, Mr. Hanrahan B.L., submitted that in this case it is indisputable that the Minister's assessment of the applicant's credibility is based entirely on the assessment made by the Refugee Appeals Tribunal and that he "relied completely on the adverse credibility findings which had been made by the Tribunal...and...made no independent and separate adjudication on these claims" as per Hogan J. in M.M. The applicant submits that this case is on 'all fours' with the M.M. judgment and points to the fact that in his assessment of the credibility of the applicant the Minister simply quoted verbatim from the Tribunal decision.
32. Further, the applicant claims that the Minister failed to make any reference to the documentary evidence produced in the form of an "Assignment Notice" which purported to show that she was at risk of arrest and detention in DR Congo. It was submitted that this was a failure to assess the evidence independently and separately and that no "completely fresh" assessment of credibility was made.
33. Finally, the applicant asserts that this court should not depart from the findings of Hogan J. in making its assessment in this case and refers to the dicta of Clarke J. in Re Worldport Ltd  IEHC 189 in respect of the instances in which this court may overrule itself. Similarly, the applicant submits that despite the fact that the decision of Hogan J. in M.M. is currently under appeal to the Supreme Court, this court is nonetheless bound to follow the law as it stands “unless and until the Supreme Court were to decide otherwise" (SZ (Pakistan) v. Minister for Justice  IEHC 95).
34. The respondent submits that Hogan J. erred in law and misapplied the decision of the ECJ. It is argued that Hogan J. failed to have regard for the legislative context in which the Qualification Directive sits and made incorrect findings as to how subsidiary protection applications should be determined. Counsel for the respondent submits that the subsidiary protection procedure is seen as being "complementary and additional" to the protection afforded under the Convention and that this is reinforced by the fact that a person is not eligible for subsidiary protection unless their asylum application has been assessed and refused. It is claimed that Hogan J. erred in deriving three obligations from the decision of the ECJ without noting that the ECJ expressly stated that the Qualification Directive doesn't seek to prescribe procedural rules applicable to the examination of an application for international protection. It is submitted that where a person's application for asylum is found to be fundamentally lacking in credibility and is thereby refused, an application for subsidiary protection based on the same assertions which underpinned the asylum claim is likely to fail for the same reasons. As such, it is argued that the Minister is not precluded, before rejecting an application, from relying in whole or in part of the findings made by the Tribunal. The respondent contends that Hogan J.'s interpretation of the ECJ decision has the effect of converting an application for subsidiary protection into a de novo appeal.
35. The respondent points out that the applicant in this case, making her claim for subsidiary protection, based it on the same assertions which underpinned her asylum claim which failed for lack of credibility. The Minister found the claims to be, once again, incredible and went further to consider that state protection and internal relocation were viable options for her. As such, the respondent claims that even if the Minister's approach to credibility was found to be flawed, his decision would remain valid on a severable basis. The respondent also claims that the Minister had regard to country of origin information which he concluded did not support the applicant's assertions that she would suffer serious and individual threat to her life. The respondent submits that in making his decision, the Minister was entitled to have regard to the findings of the Tribunal and to adopt those findings in respect of the application for subsidiary protection.
36. It is the view of this court that the decision of Hogan J. in MM is a clear enunciation of the requirements imposed on the Minister in assessing an application for subsidiary protection. I agree with the proposition that I am bound by the decision of Hogan J. in M.M. and that I could only depart from that decision if I formed the view that the decision resulted from error. While the court accepts that the bifurcated nature of the process in this State means that the subsidiary protection procedure is "complementary and additional" to that afforded under the 1951 Convention, it is clear that the procedure itself is distinct from the asylum process. It is not an appeal from the asylum decision of the Tribunal. The fact that an applicant for subsidiary protection must first have been refused refugee status demonstrates that while the separate procedures complement each other, they must be dealt with separately. It is my view that this is a case which is on 'all fours' with the M.M. decision, where Hogan J. states:
47. In order for the hearing before the Minister to be effective in the sense understood by the Court of Justice in such circumstances, such a hearing would, at a minimum, involve a procedure whereby (i) the applicant was invited to comment on any adverse credibility findings made by the Refugee Appeals Tribunal; (ii) the applicant was given a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection and (iii) involve a completely fresh assessment of the applicant's credibility in circumstances where the mere fact that the Tribunal had ruled adversely to this question would not in itself suffice and would not even be directly relevant to this fresh credibility assessment."
38. I have concerns about the manner in which the decision sets out to follow the scheme of Regulation 5 but fails to do so. Decisions such as these ought to be clearly structured, easy to follow, logically argued and accord with the minimum standard described by Murray C.J. in Meadows v. Minister for Justice  IESC 3 that: "An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context." and should not be "so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced." Between paragraphs 6 and 30 above I have commented on the decision and found it deficient for the reasons stated. But I do not condemn this decision because of these frailties, not least because they were not pleaded.
39. Finally, I question the utility of analysing country of origin information and the availability of state protection or internal relocation where the applicant's credibility is rejected. If officials believe that there is good reason to make additional decisions concerning state protection or internal relocation that might be prudent in an appropriate case. I agree with the dicta of Clark J. in S.I.A. (Sudan) v. The Refugee Appeals Tribunal  IEHC 488 when she said:
"20...In the view of this Court, internal relocation has no logical part to play in a decision on protection if the claim is rejected on credibility grounds. If however, the decision maker wishes to go on to consider the option of internal relocation as an additional or alternative ground for refusing protection, then the decision maker must consult information on the relocation area identified and on the personal circumstances of the applicant. In the absence of such information, the availability of internal protection cannot properly be considered."