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Cite as: [2012] IEHC 485
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Judgment Title: M -v- L & Ors Neutral Citation: 2012 IEHC 485 High Court Record Number: 2011 853 JR Date of Delivery: 12/10/2012 Court: High Court Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation 2012 [IEHC] 485 THE HIGH COURT JUDICIAL REVIEW Between:/ Record No. 2011 / 853 J.R. J. C. M. [DRC]
AND Record No. 2011 / 856 J.R M. L. [DRC] APPLICANTS -AND-
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 12th day of October 2012. 1. The applicants, who both come from Kinshasa in the Democratic Republic of the Congo (DRC), seek leave to apply for orders of certiorari by way of judicial review, quashing the decisions of the Minister for Justice and Equality (“the Minister”) refusing to grant them subsidiary protection and making deportation orders against each of them. 2. While these two cases are otherwise unconnected, one judgment will be given in these leave applications as the applicants submitted a set of identical legal submissions in each case entitled “Procedural Position” and are represented by the same legal teams. Indeed the same submissions have been relied upon by the same solicitors in a large number of other applications pending before this Court. The leave applications were heard before this Court on the 14th and 28th of February and on the 7th of March 2012. Ms. Sunniva McDonagh S.C. (with her Paul O’Shea B.L.) appeared for the applicants in both matters. Mr. David Conlan Smith B.L. appeared for the respondents in both matters. Mr. M - Facts 4. The Refugee Applications Commissioner found that Mr. M’s application was manifestly ill-founded and he was therefore confined to a documents-based appeal before the Refugee Appeals Tribunal. The Commissioner relied on several negative credibility findings including Mr. M’s slim knowledge of major events relating to Pastor Kutino, and also on information from the UK Border Agency indicated that his fingerprints were on a visa application to visit the UK in 2007 with different personal details. On 5th October 2010 the Refugee Appeals Tribunal affirmed the Commissioner’s negative recommendation and Mr. M was advised of that decision. He did not challenge the Tribunal decision by way of judicial review. Thereafter, by a standard form letter, the Minister informed Mr. M that his claim for refugee status had been refused. The letter continued:
You may also make representations to the Minister, setting out reasons as to why you should be allowed to remain temporarily in the State (Section 3(3) (b) of the Immigration Act, 1999. You can apply for subsidiary protection and /or make representations to remain temporarily in the State on the form CP/01 or in a similar format. Please note that the completed form CP/01 must be signed by you personally or, in the case of a minor, by a parent or guardian. You can attach any additional letters or documents from other people in support of your application when you fill in the form. Please contact us immediately if any of the facts you have stated in your application change after you submit it. If you choose this option, it is very important that you understand the following: (a) This is the order in which your case will be decided: • the Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of three years). If this happens, it will not be necessary for your representations to remain temporarily in the State to be considered. • If your application is not successful or you have not made an application for subsidiary protection, the Minister will decide on your representations to remain temporarily in the State. If the Minister decides that you may remain temporarily in the State this will be reviewed at the end of one year. • If the Minister decides that you should not be allowed to remain in the State, you will be made the subject of a deportation order. You will no longer have the option of leaving the State voluntarily without a deportation order. (b) Your application for subsidiary protection and / or representations to remain temporarily in the State is not an appeal against the refusal of refugee status. (c) If you present information in your application for subsidiary protection or representations to remain temporarily in the State that contradicts claims you made in your asylum application, this will be known to the Minister. (d) Please complete and return the attached Address Notification Form to the address below. This confirms your current address and that you agree to inform the Minister if you change address in the future. (e) If you do not apply for subsidiary protection at the same time as you make representations for leave to remain in the State, such an application will not be considered at a later date. (f) It is recommended that you get independent legal advice before you apply for subsidiary protection and, or make representations to remain in the State.” (Emphasis in original). 7. On 28th June 2011 the Minister’s officials determined that Mr. M was not eligible for subsidiary protection. That decision was notified to him on 25th July 2011. Meanwhile on 27th June 2011 the leave to remain application pursuant to s. 3 of the Immigration Act 1999 was considered and on 5th July 2011 it was determined that there were no grounds for humanitarian leave to remain and that a deportation order should be made. On 5th August 2011 a deportation order for Mr. M was signed. On about 18th August 2011, he was informed of the deportation order and of his obligation to leave the State by 3rd September 2011 and he was required to present to the Garda National Immigration Bureau (GNIB) to make arrangements for his removal from the State. The within proceedings which challenge both the subsidiary protection decision and the leave to remain decision were filed on 13th September 2011. Mr. L - Facts 9. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal rejected Mr. L’s claim on credibility grounds. Those decisions were not challenged. On 10th January 2011 Mr. L was advised that he had been refused refugee status and he was served with the same “three options” letter as Mr. M, in the terms set out above. On 21st January 2011 Mr. L applied through the RLS for subsidiary protection and for leave to remain. He repeated the facts on which his asylum claim were based without variation and on 1st March 2011 he made further representations and furnished the Minister with country of origin information (COI) reports on the DRC. 10. On 20th July 2011 the Minister’s officials determined that Mr. L was not eligible for subsidiary protection and the decision was notified to him on 25th July 2011. On 10th August 2011 his application for leave to remain was considered and on the same day it was determined that a deportation order should be made. The deportation order was signed on 11th August 2011 and notified to the applicant on 18th August 2011. As with Mr. M, the within proceedings were filed on 13th September 2011. Grounds on which Leave is Sought
(ii) The procedures followed in relation to subsidiary protection were in breach of Directive 2004/83/EC in that the Minister did not cooperate with the applicants in the consideration of their applications; (iii) The Minister engaged in selective treatment of country of origin information; (iv) The decisions to make deportation orders against them were disproportionate because of the life-long consequences of such an order; and (v) The procedures adopted in relation to subsidiary protection were unfair; 12. The applicants each require a brief extension of time to bring their leave applications. The delay is short and some explanation has been provided in each case, which is not in itself prima facie a good and sufficient reason for the extension of the time but the Court is willing to assess the grounds advanced by the applicants to determine whether, in the interests of justice, an extension of time is warranted. (i) Lack of effective remedy 14. In addition to these arguments, which have been raised and considered in a large number of cases, there was in this case an additional element to the effective remedy arguments raised. At the outset, the applicants sought to argue that the decision of Hogan J. in Efe v. Minister for Justice, Equality and Law Reform (No.2) [2011] IEHC 214 meant that if the Court refused to consider post-dated material when judicially reviewing subsidiary protection decisions, the remedy of judicial review is ineffective. That argument was effectively abandoned, however, as during the course of the leave applications in the within cases, the Supreme Court delivered its judgment in Donegan v. Dublin City Council, Ireland and the Attorney General; Gallagher v. the Attorney General [2012] IESC 18. At the resumed hearing of the leave applications in March, the applicants contended that arising from the judgment of the Supreme Court, the remedy of judicial review can no longer be considered flexible enough to vindicate fundamental rights. In other words, they argued that Efe and the decisions on which Hogan J. relied therein were overtaken by Donegan and Gallagher. The Impact of Donegan and Gallagher
17. Thirdly, McKechnie J.’s conclusion at paragraph 131 confirms that the traditional interpretation of judicial review remains unaltered:-
Inability to consider post-dated materials 20. The respondents asked the Court to consider, as part of the aggregate of remedies available, that there is nothing in the Protection Regulations which would prevent the applicants from seeking revocation of their negative decisions on subsidiary protection. This could perhaps be done, the respondents argued, if materially relevant evidence to substantiate a real risk of serious harm to a person upon return to his country of origin becomes available after the decision has been made. The respondents argue that if an applicant was successful in having the decision revoked, he could then to make a fresh application. However, as the Court is unaware of any case where such procedures have in fact been invoked, and as there is no statutory entitlement to apply for revocation of a negative subsidiary protection decision, the Court cannot speculate as to the approach which the Minister might take to any such application. The applicants could, however, have sought a declaration from this Court that they were entitled to make a fresh application for subsidiary protection. They have not sought such a declaration. 21. Assuming, for the purposes of argument, that the applicants were in possession of relevant information which did not come to light until after they had been notified of the decisions challenged herein, the Court is satisfied that alternative remedies other than a hypothetical application for revocation of the subsidiary protection decisions would be available to the applicants. For instance they could seek revocation of the deportation orders under s. 3(11) of the Immigration Act 1999 or re-admission to the asylum process pursuant to s. 17(7) and (7A) of the Refugee Act 1996. S.I. No. 51 of 2011 provides that re-admission to the asylum system may be granted “where new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee”. In the event of a negative decision on any such application they could seek injunctions preventing their deportation pending the determination of any fresh proceedings. 22. As it is clear that every unsuccessful protection applicant has the opportunity to apply to this Court for an order of certiorari quashing the negative decisions of the Minister and further to avail of other remedies if it is sought to introduce relevant new information, the Court is satisfied that the aggregate of remedies available satisfies the requirements outlined in the jurisprudence of the European Court of Human Rights and accords with the decision of the Court of Justice of the EU in Hristo Gaydarov (Case C-430/10, judgment of 15th November 2011) to the effect that an effective remedy must “permit a review of the legality of the decision at issue as regards matters of both fact and law in the light of European Union law”. Automatic Suspensive Effect 24. The Court is satisfied that notwithstanding three days of lengthy argument the applicants have failed to establish any arguable complaint under any provision of the Convention. Their assertions were based on hypothetical generalities and they have not established substantial grounds for the contention that their return to the DRC will give rise to irreversible treatment contrary to Article 3. They have therefore been unable to establish that their challenges require automatic suspensive effect. Cooke J. in A.P.A. (a minor) v. The Minister [2010] IEHC 297 effectively found that the system by which deportation decisions are judicially reviewed in this State incorporates a degree of automatic suspensive effect in that the Minister cannot execute a deportation order within the 14 days allowed if judicial review proceedings issue. At paragraph 16 of his judgment, Cooke J. set out seven propositions in relation to the approach taken by the Irish courts, the second of which is as follows:
“…the scope of the State’s obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant’s expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (or “a remedy with automatic suspensive effect” as it is phrased in Gebremedhin v. France, application no. 25638/05 para 66 in fine.)”” 26. The applicants contended that in order for a remedy to be effective it must entitle them to a full merits based appeal. As subsidiary protection decisions concern serious harm it is not enough that they be reasonable; they must be right. The applicants argued that as the Court is bound by the restrictive application of judicial review it cannot interfere in any decision considered to have been reasonably made even if the Court itself would have come to a different determination based on the same facts. 27. The Court cannot accept these arguments. The reasonableness of a decision has in this jurisdiction included an analysis of proportionality in view of the Courts’ inherent duty to vindicate fundamental rights. This was reiterated in Meadows v. The Minister [2010] 2 IR 701. Article 47 of the Charter of Fundamental Rights of the EU, which guarantees the right to an effective remedy, does not say that this remedy should take the form of an appeal, nor does any secondary law of the EU suggest that an effective remedy equates to an appeal. In the opinion of this Court, the recent decisions of the Court of Justice of the EU in Gaydarov v. Bulgaria (Case-430/10, decision of 17th November 2011) and Diouf v. Luxembourg (Case-69/10, decision of 28th July 2011) provide no further assistance on this matter. Both the applicants and the respondents sought to rely on paragraph 41 of Gaydarov in support of their conflicting contentions. The pivotal paragraph reads:
29. There is no doubt that the review of the legality of a decision is the classic function of judicial review and that such High Court review includes addressing the facts, whether agreed or found. Judicial review is as described in Diouf where the Court of Justice of the EU stated at paragraph 61:-
The Principles of Equivalence and / or Effectiveness Conclusion on the Effective Remedy argument
(ii) Failure to co-operate (iii) Selective consideration of COI 36. Concentrating on the personal details and claims of these two applicants, it is seen that they are from Kinshasa and they will be returned there if their deportations orders are put into effect. The Minister therefore correctly focussed his attention on the area of the DRC which was relevant to each applicant and not on the situation prevailing in Kivu Province or in Ituri where open conflict continues. While the Court can readily accept that life in Kinshasa does not compare to conditions in the Irish towns where Mr. M and Mr. L currently reside, country reports nevertheless describe a functioning police force, even if it is under-funded and policemen are open to accepting corrupt payments. Relative to the war zones in eastern and south eastern DRC there is something approaching normal order in Kinshasa. While describing it as a place where the “rule of law” prevails (as the Minister’s agents did) may be inappropriately optimistic, the fact remains that these two individual applicants were deemed not to be in need of protection as their stories were not found credible. It was not accepted that they have powerful enemies in the body of the Colonel who was alleged to have given Mr. M the poison to kill Mrs. Kutino or in the case of Mr. L, the Colonel who allegedly imprisoned him because his wife died in the clinic where Mr. L was a porter. While the poor human rights record in the DRC is accepted, no fact or circumstance was advanced by the applicants to establish even arguable grounds for contending that the Minister’s assessment was irrational or unreasonable or that he ignored evidence that they face a real risk of serious harm on their return to Kinshasa. That is the fundamental fact behind the individual refusals of subsidiary protection. If the applicants did not agree with the conclusions drawn by the Refugee Appeals Tribunal, then the correct approach was to challenge those orders by judicial review and / or to make submissions to the Minister as to why the credibility findings made by the Commissioner and / or the Tribunal were incorrect. The assessments carried out by the Minister’s agents may contain some excessively optimistic assertions but overall, the conclusions reached are neither unreasonable nor irrational in the specific circumstances of these two cases. (iv) Disproportionality of Deportation Order 38. The Court further notes that the effects of a deportation order are not necessarily life-long as any person subject to a deportation order can seek revocation of the deportation order even if he has already been returned to his home state and if he is successful, can apply for a visa to re-enter the State. The Court is satisfied that no substantial grounds have been identified in this regard. (v) Unfairness 40. The next argument under the heading of “unfairness” relates to the timing of an application for subsidiary protection. Regulation 4(2) of the Protections Regulations of 2006 provides that the Minister is not obliged to consider an application for subsidiary protection from anyone other than a person to whom s. 3(2) (f) of the Immigration Act 1999 applies, i.e. a person whose application for asylum has been refused by the Minister. In many if not most cases, the refusal of refugee status will carry with it negative credibility findings. The reports of the Commissioner and the Tribunal must be put before the Minister when he is considering subsidiary protection. The unattractive status of being a failed asylum seeker is compounded by the tone and wording of the “three options” letter which indicates the person’s entitlement to be in the State temporarily has now expired and that the Minister proposes to make a deportation order. The applicant is told to choose one of the three options: 1. leave the State; 2. consent to a deportation order; or 3. apply for subsidiary protection and/or make representations under s.3 of the Immigration Act 1999. Later the applicant is informed that if he does not apply for subsidiary protection at the same time as he makes representations under s. 3, such an application will not be considered at a later date. In other words, an applicant has to accept that the Minister is entitled to deport while seeking to make the case that a protection decision is still outstanding, which is inherently unfair. Alternatively, if an applicant does not apply for subsidiary protection at the same time as representations under s. 3, then subsidiary protection will not be considered at a later date. 41. The Court is satisfied that this argument is sufficiently reasonable, arguable and weighty that leave should be granted to pursue the argument at a substantive hearing. Leave is granted against the following background. Ireland is the only EU Member State which does not have a single protection application system or what Cooke J. has described as a “one-stop” procedure wherein applicants have their asylum and subsidiary protection applications assessed by the same decision-maker at the same time (see e.g. S.L. (Nigeria) v. The Minister & Others [2011] IEHC 370). In contrast, Ireland operates a sequential, slow and protracted system where the ORAC and RAT have no jurisdiction to consider subsidiary protection. Only the Minister can consider such applications and although the right to apply for subsidiary protection is a right guaranteed by the Qualification Directive, in the terms of the “three options” letter sent by the Minister it is arguably relegated to a grace and favour status. In that letter the Minister states:
43. The Court has serious misgivings relating to the Minister’s standard-form letter and the directions relating to the third option, whereby an applicant is offered the right to apply for subsidiary protection which is rolled up with humanitarian leave to remain. One is a guaranteed EU right while the other is a discretionary power in the gift of the Minister subject to various international obligations. The Court is also concerned that eligibility for subsidiary protection is considered by a civil servant working in the Minister’s Department who is not independent of the Minister in the performance of his duties, as is required of the Refugee Applications Commissioner and the Refugee Appeals Tribunal pursuant to ss. 6(b) and 15(b) of the Refugee Act 1996, as amended. Moreover the experience, knowledge, training and education of those considering subsidiary protection on behalf of the Minister are unregulated. No requirement of competency applies to such persons comparable to that applicable to an authorised officer conducting an interview on behalf of the Refugee Applications Commissioner under Regulation 3 of the Refugee Act (Asylum Procedures) Regulations 2011 (S.I. 52 of 2011). An equivalent competency requirement applies to those assessing subsidiary protection applications in all other Member States pursuant to Regulations 4(3) and 8(2) (c) of the Procedures Directive. As fundamental human rights are at issue and in circumstances where the legal framework underpinning eligibility for subsidiary protection is relatively complex, it is certainly arguable that an applicant for subsidiary protection in Ireland is disadvantaged when compared to applicants in other Member States. Ireland has not adopted a “one stop” procedure which means that the safeguards applicable under the Procedures Directive do not apply to subsidiary protection applications here. It cannot be conducive to the adoption of common procedures throughout the whole EU if one country operates a system so much at variance with the other Member States, more particularly since Ireland opted in to the common minimum standards introduced under the Qualification and Procedures Directives. However, draft legislation which envisages a unitary system has been before the Dáil in one form or another since 1998 and has yet to be brought into law. 44. While these applicants have been unable to demonstrate either in the grounds pleaded or in argument any specific unfairness or prejudice relating to them personally arising from the general unfairness which they identify in the subsidiary protection system, nonetheless this case represents one of many where similar hints and suggestions have been raised with increasing frequency. In the circumstances, while recognising deficiencies in the applicants’ pleadings, the degree of unease with which this Court views the subsidiary protection process supports the view that their arguments relating to the general unfairness of the subsidiary system should be fully developed and definitively decided. 45. The Court is therefore prepared to extend the time for the applicants to bring judicial review proceedings and to grant leave to develop their discrete arguments relating to the unfairness arising from a procedure which (i) does not permit an applicant to apply for subsidiary protection unless he / she is a declared failed asylum seeker; (ii) involves notifying such failed asylum seeker that his right to remain in the State has expired before he / she has had an opportunity to avail of the right to apply for subsidiary protection; (iii) combines a guaranteed right to apply for subsidiary protection with a discretionary power to seek leave to remain on humanitarian grounds; and (iv) fails to ensure that the competency and independence of the decision-maker is at least equivalent to that of the asylum decision-maker. Grounds on which leave will be granted
(1) The applicant is told of his right to apply for subsidiary protection after being told that his right to remain in the State has expired; (2) The applicant potentially carries findings of a lack of credibility with him from the asylum process thereby creating a negative impression from the outset; (3) The applicant cannot bring a claim unless he has been informed by the Minister that he is a failed asylum seeker. The decision to refuse a declaration of refugee status implies that the Minister has already given some consideration to the case and has made a negative determination in relation to the applicant’s case. This creates an impression of partiality on the part of the Minister whose officials will also consider the subsidiary protection application; (4) An application for subsidiary protection is considered during the pre-deportation process, when the Minister has already formed an intention to consider making a deportation order; (5) The competence, knowledge and training of the civil servant assessing eligibility for the subsidiary protection, a complex legal issue, is not regulated; and (6) In contrast with asylum applications, subsidiary protection applications are not considered by a person who is independent of the Minister in the performance of his functions 1.The proofs were (1) that the dwelling was provided by the housing authority; (2) that no tenancy existed in respect of such a dwelling; (3) that notwithstanding a demand for possession, the dwelling remained occupied by the individual to whom the demand was addressed; and (4) that within the demand there was a statement of the housing authority’s intention to invoke s. 62 in the event of possession being refused or denied.
2.The ground on which Cooke J. gave leave in V.J. was a follows: “By confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker’s entitlement to remain lawfully in the State pursuant to s. 9(2) of the Refugee Act 1996, has expired and a decision has been taken to propose the deportation of the applicant under s. 3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of 1999, has the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th April, 2004, and is incompatible with general principles of European Union Law.”
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