Ireland: High Court: W.A [DRC] -v- Minister for Justice & Anor, 2012 IEHC 251, 25/06/2012

Friday, October 4, 2013

The applicant is a national of the Democratic Republic of Congo (DRC) who arrived in Ireland in November 2009, and claimed asylum. In a report dated the 8th 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. [paragraph 2] On appeal the negative recommendation of the Commissioner was affirmed by the Tribunal in a decision of 30th 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 been involved, to have been detained for two years and to have escaped in the manner described, lacked credibility. [paragraph 3] In response to the Minister's letter under s. 3 of the Immigration Act 1999, the applicant applied for subsidiary protection on the 6th September, 2010, and made representations for leave to remain by letter dated the 30th August, 2010. [paragraph 4]

In the motion before the Court the applicant sought leave to apply for judicial review of a decision of the first named respondent of the 1st 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 15th July, 2011. [paragraph 1]

The Court found that, in its judgment, insofar as any particular grounds have been put forward against the deportation order as such, none has been made out to the extent that would constitute a substantial ground for the grant of leave to challenge that decision independently of the challenge to the subsidiary protection refusal. The representations which are alleged not to have been considered were somewhat brief and perfunctory and nothing was said in relation to the prohibition of refoulement under s. 5 of the Act of 1996 which was not already covered by the subsidiary protection application. So far as concerns the entitlement to protection by reference to s. 5 of the Refugee Act 1996, is concerned, his claim has been rejected primarily by reason of the lack of credibility in his original claim to have suffered persecution by reason of his involvement with the MLC and his participation in the demonstrations of March 2007. As such, his claim based on s. 5 has in fact been considered and rejected. Further, the applicant is not in a position to put forward any substantial ground by reference to a claim to unlawful interference with his entitlement to protection of his family life or private life under Article 8 of the European Convention on Human Rights. [paragraph 43]. Because the validity of the deportation order is dependent upon the prior definitive rejection of an application for subsidiary protection, the Court proposes to deal with the application to challenge the deportation order in the light of the leave granted to challenge the refusal of subsidiary protection by granting leave in this respect upon a single ground as follows:-  "The making of the deportation order in respect of the applicant was unlawful because of the absence of any valid prior decision on the applicant's application for subsidiary protection." [paragraph 44] Leave will, accordingly, be granted to apply for orders of certiorari in respect of the refusal of the application for subsidiary protection of the 1st April, 2011, and the deportation order dated the 15th July, 2011. The further declaratory reliefs sought in the statement of grounds dated the 11th August, 2011, are not necessary. The order will, however, include reliefs in the terms of paras. 11, 12 and 13 of the statement of grounds. In lieu of the thirteen grounds set out in the statement of grounds, leave will be granted by reference to the three grounds outlined in the text of the judgment. [paragraph 45].

For the full text of the judgment please visit: Irish High Court: W.A [DRC] -v- Minister for Justice & Anor

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Credibility assessment
Subsidiary Protection
Family unity (right to)