Judgment Title: P.B. N. (DR Congo) -v- Minister for Justice and Equality
Neutral Citation:  IESC 9
Supreme Court Record Number: 413/13
High Court Record Number: 2012 957 JR
Date of Delivery: 21/02/2014
Court: Supreme Court
Composition of Court: Fennelly J., McKechnie J., Laffoy J.
Judgment by: Laffoy J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
[Appeal No. 413/2013]
P.B. N. [DR CONGO]
THE MINISTER FOR JUSTICE AND EQUALITY
Judgment of Ms. Justice Laffoy delivered on 21st February, 2014
• In July 2009 an application for subsidiary protection was submitted on the appellant’s behalf. In June 2011 the respondent determined that she was not eligible for subsidiary protection. The appellant did not challenge that determination by way of judicial review.
• On 27th September, 2011 the respondent made a deportation order (the Deportation Order) in respect of the appellant. The Deportation Order was not challenged.
• On 23rd July, 2012 the appellant’s current solicitors made two parallel applications to the respondent on her behalf, namely:
(a) an application under s. 17(7) of the Refugee Act 1996 (the Act of 1996) for the consent of the respondent to the re-admission of the appellant to the asylum system; and
(b) an application seeking the revocation of the Deportation Order pursuant to s. 3(11) of the Immigration Act 1999 (the Act of 1999).
• As is recorded in the judgment of the High Court, the application under s. 17(7) was based on the appellant’s asserted fear of being subjected to persecution if she was returned to the DRC as a failed asylum seeker. By a decision dated 17th August, 2012 the respondent refused his consent under s. 17(7) of the Act of 1996. Following a review of that decision, by a further decision dated 8th November, 2012 the decision of 17th August, 2012 was affirmed.
• On 22nd November, 2012, the appellant initiated judicial review proceedings in the High Court (Record No. 2012/957 J.R.) (the 2012 Judicial Review Application). The relief sought was an order of certiorari quashing the decision of the respondent dated 8th November, 2012. Before summarising the grounds on which that relief was sought, it is to be noted that Clark J. in the final paragraph of her judgment (para. 55) criticised the manner in which the statements of grounds both in the 2012 Judicial Review Application and in the 2013 Judicial Review Application referred to later were set out, on the basis that they contravened Order 84, rule 20(3) of the Rules of the Superior Courts as amended by S.I. No. 691 of 2011.
• The grounds outlined in the 2012 Judicial Review Application, insofar as relevant, in truncated form were as follows:
(a) that the respondent erred in law and/or in fact in concluding that the information and documentation furnished by the appellant to the respondent on the application to be re-admitted to the asylum process did not amount to “new evidence”;
(b) that the respondent erred in law and/or in fact by relying on findings of lack of credibility on the part of the appellant in her asylum claim, in circumstances where those findings were largely irrelevant to the subject matter of the application to be re-admitted to the asylum process;
(c) that the respondent erred in law and/or in fact in “apparently preferring” statements made by UNHCR in 2006 relating to the treatment of returned failed asylum seekers to the DRC over the more up to date information furnished by the appellant and in failing to provide any “reason [or] rationale” for such apparent preference and by utilising information that was not up to date at the time of the making of the decision;
(d) that the respondent erred in law and/or in fact in relying on the understanding that “when the Irish authorities make arrangements to repatriate persons to the [DRC], no mention is made of them being failed asylum seekers” in the circumstances outlined in that ground;
(e) that the respondent erred in law and/or in fact in “apparently concluding” that failed asylum seekers per se could not comprise a “particular social group” for the purposes of refugee law; and
(f) that the impugned decision was arrived at in breach of the principle of audi alteram partem and the appellant’s right to be heard in circumstances where the appellant in her application for review had stated that, if it was proposed to examine any other country information or evidence not already referred to in her application or in the refusal, her solicitors would be obliged if copies thereof were furnished to them to enable them to consider them and make relevant submissions thereon prior to any final decision being arrived at, but despite that “reasonable request” further and other country information was relied on against the appellant’s interests and in breach of natural justice and fair procedures and her right to be heard.
Seven further grounds were outlined which broadly reflect the foregoing grounds in alleging failure on the part of the respondent to provide reason or rationale for certain conclusions in relation to the material furnished on behalf of the appellant and his treatment of that information. Further, in relation to the application of s. 17(7) to the appellant, it was specifically asserted that it was irrational for the respondent to conclude that new elements had not been presented which significantly added to the likelihood of the appellant qualifying as a refugee and/or that those elements could have been presented at an earlier stage. It was contended that the respondent was bound by virtue of s. 17(7A)(b) of the Act of 1996, as amended, to consent to the appellant’s re-admittance to the asylum process.
• As is recorded in the judgment of the High Court, the application under s. 3(11) of the Act of 1996 was based on an asserted significant change in the appellant’s circumstances since the Deportation Order was made, namely, that there had been a deterioration of conditions in the DRC and in the treatment of returned asylum seekers. That application was determined in February 2013. The appellant was informed by letter dated 20th February, 2013 that the respondent had declined to revoke the Deportation Order.
• One of the documents which had been submitted on behalf of the appellant with both the application under s. 17(7) and the application under s. 3(11) was a report dated 24th November, 2011 entitled “Unsafe Return – Refoulement of Congolese Asylum Seekers” (the Unsafe Return Report), which was compiled by Catherine Ramos for Justice First, a registered charity in the United Kingdom. As is recorded in the judgment of the High Court, the “lengthy” file examination analysis of the s. 3(11) application conducted by an executive officer in the Repatriation Unit of the respondent’s Department, which recommended that the respondent affirm the Deportation Order in respect of the appellant, cast doubt on the relevance and reliability of the Unsafe Return Report. Further, comprehensive consideration was given by the executive officer to a report which was considered of relevance and which had been received by the respondent’s Department subsequent to the appellant’s application. This was a report by the United Kingdom Border Agency dated November 2012 entitled “Report of a Fact Finding Mission to Kinshasa conducted between 18th and 28th June, 2012” (the UKBA Report). The executive officer stated that, having considered the Unsafe Return Report and the other documentation submitted by the appellant’s solicitors in the light of the country of origin information available from the UKBA Report, information which was in the public domain, he was satisfied that the appellant’s life or freedom would not be threatened were she to be expelled from the State and returned to the DRC. In making his recommendation he recorded that the appellant’s case had been considered under s. 3(11) of the Act of 1999 and under s. 5 of the Act of 1996 and refoulement was not found to be an issue in the case. Having considered the correspondence submitted on behalf of the appellant since the Deportation Order had been made, he did not find that the information submitted would warrant the respondent to reconsider the Deportation Order and, therefore, he recommended that the respondent affirm the Deportation Order.
• Following the respondent’s decision under s. 3(11) of the Act of 1999, the appellant, on 22nd April, 2013, initiated further judicial review proceedings (Record No. 2013/292 J.R.) (the 2013 Judicial Review Application). The primary relief which the appellant seeks on the 2013 Judicial Review Application is an order of certiorari quashing the respondent’s decision of 14th February, 2013 refusing to revoke the Deportation Order dated 27th September, 2011 made in respect of the appellant. In summary, the grounds on which that relief is sought are as follows:
(a) that the impugned decision was arrived at in breach of the principle of audi alteram partem and/or the appellant’s right to be heard, based on the appellant’s solicitors’ letter seeking to be apprised of, and to be given an opportunity to comment on, any information other than the information submitted by them which the respondent intended to rely on, the essence of this ground being that the appellant was not given an opportunity to comment on the UKBA Report; and
(b) that there was no rational basis upon which it could have been rationally concluded that the appellant’s “life or freedom would not be threatened were she to be expelled from the State and returned to the DRC”, asserting that such “a conclusion did not flow from the premise upon which it was purportedly based”.
Five further grounds are outlined in relation to the primary relief, which challenge the validity of the decision of the respondent in a very imprecise fashion. However, Article 3, presumably, of the European Convention on Human Rights (ECHR) was invoked, albeit very obliquely, to support the contention that the decision of the respondent was invalid in that –
(i) it is asserted that in circumstances where the respondent chose to examine country information published after the date of the application, and where the information confirmed that, at least in some circumstances, a deportee such as the appellant might, if deported, be imprisoned “for however long”, it was incumbent on the respondent to examine independent up to date and precise information regarding prison conditions in the DRC in order to ascertain whether those conditions would be in breach of Article 3, and
(ii) it is asserted that no regard was had to the fact that Article 3 is absolute in nature and permits no exception.
• In the 2013 Judicial Review Application the appellant also seeks a declaration that the system in place in the State whereby a proposed deportee is not informed of the actual proposed date of deportation in advance is in breach of the right of the appellant to access to the Court. My understanding is that on the hearing of the appeal to which this judgment relates, counsel for the appellant acknowledged that that relief and the ground on which it is sought is academic in the context of this appeal, which is an appeal from the decision of the High Court refusing to grant an interlocutory injunction restraining the respondent from implementing the Deportation Order pending the determination of both the 2012 Judicial Review Application and the 2013 Judicial Review Application.
2. The application for leave has not been determined in either the 2012 Judicial Review Application or the 2013 Judicial Review Application. Counsel for the respondent informed the Court that in the ordinary course it would be several years before the applications for leave were heard.
Appeal/application to Supreme Court
(b) refused to extend the stay on the Deportation Order, and
(c) ordered the appellant to pay the respondent’s costs of the injunction.
5. Subsequently, the appellant brought an application in the appeal proceedings seeking an injunction restraining the deportation of the appellant pending the determination of the proceedings, which I understand to mean the determination of both the 2012 Judicial Review Application and the 2013 Judicial Review Application. That application was first returnable in this Court on 31st January, 2014. On the hearing of that application on 7th February, 2014, it was accepted by counsel for the appellant that the appeal against the refusal of the High Court to grant the interlocutory injunction and the application to the Supreme Court for an interlocutory injunction should be treated as one and that the determination on the application would effectively dispose of the appeal.
6. The application to this Court is grounded on an affidavit of the appellant sworn on 16th January, 2014. The exhibits before the Court include the Unsafe Return Report, the UKBA Report and a further report of Justice First entitled “Unsafe Return II” (the Unsafe Return II Report), which was dated 3rd October, 2013 and, accordingly, post-dated the judgment and order of the High Court. No affidavit evidence was filed on behalf of the respondent.
Judgment of the High Court
(b) The court should consider where the greatest risk of injustice would lie. But in doing so the court should:-
(i) Give all appropriate weight to the orderly implementation of measures which are prima facie valid;
(ii) Give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and
(iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;
(iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.
(c) In addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages.
(d) In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.”
One of the factors outlined, which Clarke J. had referred to in his judgment in the Okunade case in para. 10.5, was that an applicant must be entitled to put before the Court the “practical consequences” of being deported pending the conclusion of the judicial review process “such as the relevant conditions in any country to which the applicant is likely to be deported”.
12. In addressing the question whether there was a fair issue to be tried, Clark J. first considered the application of s. 17(7),(7A) and (7D) of the Act of 1996, as amended. She referred to the judgment of the High Court (Cooke J.) in L.H. v. Minister for Justice  3 IR 700 as to the effect of those provisions, quoting the following passage in that judgment (at p. 7.13):
13. In relation to the remaining grounds, Clark J. stated (at para. 51) that she was not satisfied that the appellant had established any fair issue to be tried on any of them. As regards the complaint that the respondent had not given the appellant an opportunity to comment on the country of origin information sourced by the respondent, she stated that the appellant had not shown any prejudice arising from that omission and, in particular, she had not been able to demonstrate that she could have discredited or undermined the country of origin information sourced by the respondent by placing more recent contradictory information or judgments of the Court before him. She also dismissed as having no substance the appellant’s complaint that the respondent’s agents relied on the negative credibility findings made by the RAC and the RAT, having regard to the fact that they were unchallenged by way of judicial review during the asylum process and were not disputed at the subsidiary protection stage and no reason had been put forward why the respondent should not rely on them. She also found that the appellant’s right of access to the Court had been safeguarded at all stages, pointing out that, when the respondent would not give an undertaking not to deport her, she had come to Court seeking interim and interlocutory injunctions restraining her deportation.
14. Although, on the basis of Okunade principles, having found that the appellant had not established that there was a fair issue to be tried, that, effectively, was the end of the matter, Clark J. stated (at para. 54) that she was satisfied that there were no countervailing circumstances of the nature outlined in the judgment in the Okunade case which favoured the grant of an injunction. In particular, she stated that the conclusion of the respondent that the appellant is not at risk of treatment contrary to Article 3 ECHR was reasonable, rational and grounded on objective country of origin information, so that the appellant had not established a credible basis for the contention that her life or freedom would be under threat upon her return to the DRC, or that she would suffer irremediable harm.
The appellant’s submissions
16. In the context of those submissions made on behalf of the appellant, it is appropriate to consider the basis advanced by the appellant in her grounding affidavit in support of her application for an interlocutory injunction. She has averred that the applications which are the subject of the 2012 Judicial Review Application and the 2013 Judicial Review Application were primarily based on an assertion that she would likely be subjected to serious harm on account of her being “a returned failed asylum seeker per se”. Further, she has averred that the assertion was based on new evidence which had not been available or published at the earlier stages of her application. She has averred that she fears she will be deported imminently unless the respondent is restrained from deporting her by order of the Court. That averment has not been controverted and, on the evidence, appears to be correct. Later in her affidavit she has averred that she fears “serious harm” in the event of her being returned to the DRC and that she is apprehensive that she may be subjected to serious harm on the basis that she would be “a failed asylum seeker”. In support of that averment she relied on the Unsafe Return Report. In particular, she has averred that there appears to be a likelihood that persons such as her might be subject to ill-treatment after immediate arrival, which, given the emphasis placed on the word “after”, I understand to mean after leaving the airport at Kinshasa. The appellant has also referred to the UKBA Report and contended that it does not contradict the conclusions of the Unsafe Return Report, but actually goes some way towards supporting those conclusions. In addition to relying on the dangers that she would be likely to be exposed to in the event of her return to the DRC, the appellant has also averred that, at this stage, she has established a significant private life in the State and the disruption to the same that would be occasioned by her deportation would have a huge negative impact on her. However, she does not point to any particular factual circumstance which, to use the terminology used by Clarke J. in the Okunade case, points to a “real risk of harm on deportation such that the risk of injustice on that basis would go beyond the ‘ordinary’ risk” (para. 11.1).
17. While the report entitled “Unsafe Return II” has been exhibited on the application, in reality, neither side made any substantial submissions to the Court on the basis of the content of that document
18. Finally, counsel for the appellant relied on a recent judgment of the High Court, S.S.L. v. The Minister Justice and Equality & Ors.  IECH 421, in which judgment was delivered by McDermott J. on 10th September, 2013. The applicant in that case was a national of the DRC whose application for asylum had been refused in May 2010. Further, an application for subsidiary protection was refused in May 2011. A deportation order issued against him on 25th August, 2011. Ultimately, he was granted leave to apply for a order of certiorari in respect of the decision refusing subsidiary protection and to quash the deportation order, the leave having been granted by the High Court (Cross J.) on a single ground, namely, that the representations made and the country information consulted, had been read selectively against the applicant’s interests and the conclusions reached were irrational. In reviewing the decision on the application for subsidiary protection, McDermott J. considered whether the applicant was a person “in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm” as defined in the European Communities (Eligibility for Protection) Regulations 2006. McDermott J. found that the overwhelming evidence in the country of origin information in the case before him was that law and order in the DRC had essentially broken down. He continued (at para. 35):
Submissions on behalf of the respondent
20. On the appellant’s contention that there was a breach of the principle audi alteram partem, counsel for the respondent submitted that it is settled law that, while there is an obligation on the respondent to consider representations made, there is no obligation to enter into correspondence. In this connection counsel relied on the decision of the High Court (Cooke J.) in J.E. v. Minister for Justice  1 IR 574. That decision was on the substantive application of the applicant for an order of certiorari quashing a deportation order made by the respondent on the basis that he had established substantial grounds that the respondent had failed to consider his claim and had failed to give adequate reasons for the finding. In his judgment (at para. 6), Cooke J. stated that the basis upon which a challenge can be raised to a deportation order is limited and he then outlined the approach of the Court as described in the judgment of Clarke J. of 9th November, 2005 in Kouaype v. Minister for Justice  IEHC 380. Later (at para. 17) he stated:
‘Section 5 of the Act of 1996 does not require the first respondent to give any notice to a person in the position of the second applicant that he proposes to make a decision under that section: it simply requires the first respondent to satisfy himself as to the refoulement issue before making a deportation order. . . I am satisfied that there is no obligation on the first respondent to enter into correspondence with the person in the position of the second applicant setting out detailed reasons as to why refoulement does not arise. The first respondent's obligation was to consider the representations made on her behalf and to notify her of his decision: that was done, and accordingly, this ground was not made out.’”
21. In addressing the appellant’s argument that the respondent was not entitled to rely on the findings of lack of credibility made by the RAC or the RAT, counsel for the respondent referred to the decision of the High Court (Charleton J.) in F.N. v. Minister for Justice  1 IR 88 and, in particular, the following passage from the judgment (at para. 46):
. . . as requiring the respondent to fully and properly consider any case as to additional rights where such had not previously been considered. Where, as a matter of substance, however, a contention as to the factual basis for such rights is the same as that which is already being processed under the Refugee Act 1996, then the case law clearly establishes that the respondent is entitled to place some degree of weight on the failure of the applicant to succeed in persuading the Refugee Applications Commissioner and the Refugee Appeals Tribunal as to their entitlement to refugee status and as to their credibility.”
22. The first issue which the Court has to determine is whether the appellant has established an arguable case, that is to say, an arguable case as to her entitlement to all or some of the reliefs claimed in the 2012 Judicial Review Application and the 2013 Judicial Review Application. It is important to emphasise that this is an application for interlocutory relief which, if granted, will be of limited duration, at its longest until the determination of the substantive applications, if leave is granted. While the fourth element of “the overall test” as set out by Clarke J. in his judgment in the Okunade case at (d) in para. 9.42 does envisage the Court placing due weight on the strength or weakness of the applicant’s case, that principle is subject to the qualification that the issues arising do not involve “detailed investigation of fact or complex questions of law”, which reflects the oft-quoted passage from the judgment of Lord Diplock in American Cyanamid Co. v. Ethicon Ltd.  1 AC 396, which was earlier quoted by Clarke J. at para. 9.34 of his judgment.
23. The grounds relied on by the appellant in support of her claim for judicial review on both applications, in the context of arguability, cover a broad spectrum. Clarke J. pointed out in the Okunade judgment that many judicial review cases involve either very net questions of law or involve the application of well established principles to the circumstances of the case, which may well take them outside the necessity “for detailed argument and mature considerations” of the type envisaged by Lord Diplock. In my view, the appellant’s argument based on audi alteram partem probably falls into that category, having regard to the decision in the Baby O case, which has been consistently followed. As such, it is not an arguable ground. Similarly, on the authority of the F.N. decision, the argument that the reliance by the respondent on findings by the RAC and the RAT of lack of credibility on the part of the appellant in her asylum claim was irrelevant on the application under s. 17(7) is probably not an arguable ground.
24. On the other hand, the determination of whether the appellant established compliance with the requirements of s. 17(7), 7(A) and 7(D) of the Act of 1996, as amended, having regard to the presentation to the respondent on her behalf of the Unsafe Return Report, when considered in the context of an argument that the contents thereof suggest infringement of the prohibition on refoulement under s. 5 of the Act of 1996 and of Article 3 of the ECHR, in my view, does stray into the realm of the need for “detailed argument and mature considerations”. This is particularly so when further complexity is introduced by reason of a comparison of the Unsafe Return Report and the UKBA Report. The “arguable case” test, which is the first stage in the context of deciding on an interlocutory basis what is to happen on a temporary basis pending the hearing of a leave application, must be applied having regard to the interlocutory nature of the application. It cannot have been a correct application of the relevant principles to suggest at interlocutory stage that the appellant must fail at the leave stage, as happened in the High Court. In the penultimate paragraph of her judgment (para. 54) Clark J. stated as follows:
25. I have come to the conclusion that when one identifies the core issues underlying the appellant’s claim for the reliefs she seeks, viewed by reference to both the 2012 Judicial Review Application and the 2013 Judicial Review Application, which are whether –
(b) there was failure on the part of the respondent to comply with the prohibition on refoulement contained in s. 5 of the Act of 1996 and to ensure the necessary protection for the rights of the appellant under Article 3 of the ECHR so as to expose her to a real risk of suffering serious harm on deportation,
Where greatest risk of injustice would lie: conclusion
27. I am satisfied that there is, on an arguable grounds basis, a credible basis for suggesting that a real risk of significant harm would attach to the appellant if the Deportation Order were implemented. I am also satisfied that no very weighty considerations have been identified to displace the balance of justice being in favour of granting an injunction. In reaching that conclusion, I have had regard to whether this case falls within the category of judicial review cases identified by Clarke J. in paragraph 10.7 in the judgment in the Okunade case. There Clarke J. referred to a situation where the Court is in a much better position to form a judgment on the question whether there is a real risk of serious harm should a deportation order be implemented because the applicant has had the opportunity to have the facts underlying his or her claim to such a risk analysed by a series of administrative and judicial bodies. While there was before the High Court and there is before this Court, not only the lengthy file examination carried out on the s. 3(11) application, but also a review carried out by an official in the Ministerial Decisions Unit of the respondent’s Department on the s. 17(7) application, in my view it is not possible, and it would be inappropriate to attempt, to form a view that there is not, on an arguable grounds basis, a credible basis that there would be a real risk of harm to the appellant if she were deported to the DRC. The reality is that the evidential conflicts raised on the documents considered by the administrative bodies and exhibited on this application, including the Unsafe Return Report and the UKBA Report, which concern the fundamental right to be protected from serious risk of harm, are such that it is not the function of the Court to attempt to resolve them on an interlocutory application. It may be that on the hearing of the application for leave, or if leave is granted, the hearing of the substantive judicial review applications, the Court will come to the same conclusion as the High Court of England and Wales on the substantive judicial review application in the P (DRC) case, or it may not. That is for another day and it is a matter on which no view should be expressed by this Court.
(b) the order of the High Court dated 16th September, 2013 be discharged, and
(c) there be an order restraining the deportation of the appellant pending the determination of the 2012 Judicial Review Application and the 2013 Judicial Review Application or further order.