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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> v.I.O. -v- Minister for Justice, Equality & Law Reform & anor [2014] IEHC 562 (04 December 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H562.html Cite as: [2014] IEHC 562 |
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Judgment
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Neutral Citation: [2014] IEHC 562 THE HIGH COURT JUDICIAL REVIEW [2010 No. 362 J.R.] IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5 AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) BETWEEN/ V.I.O. APPLICANT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND GARDA NATIONAL IMMIGRATION BUREAU RESPONDENTS JUDGMENT of Mr. Justice Barr delivered the 4th day of December, 2014 1. This is a telescoped application by way of judicial review for an order of certiorari quashing the decision of the Minister refusing the applicant subsidiary protection, dated 11th January, 2010; and for an order of certiorari quashing the deportation order made in respect of the applicant, dated 19th January, 2010. 2. These proceedings were instituted on 24th March, 2010. The first return date was 26th April, 2010. However, the applicant left the State in January 2011, and is now back in Nigeria. He made his own travel arrangements rather than be deported from the State by the authorities. An injunction application in respect of the deportation order was made at the eleventh hour but this was refused by Birmingham J. due to the late nature of the application. Extension of time 4. The applicant stated that he attended at the Adelaide and Meath Hospital on 10th March, 2010, for an out patient appointment. However, he was kept overnight and was formally admitted to hospital on 11th March, 2010. At that time he was suffering from a distal tibia wound site infection which was delaying bone healing. It was treated intravenously with antibiotics and the applicant underwent a surgical procedure to wash out the wound. He was advised that he would require treatment with the external fixater in place for at least a further six months. 5. I am satisfied that the applicant did form the opinion that he wished to challenge the deportation order within the time period allowed. I accept that, due to his health issues, he was not in a position to finally swear the affidavit until 24th March, 2010. In the circumstances, where there is no obvious prejudice to the respondents, it is appropriate to extend the time within which the challenge to the deportation order may be made. I extend the time period up to and including 24th March, 2010, being the date on which these proceedings were commenced. Background 7. In this case, the applicant seeks to challenge the Minister’s decision to refuse his subsidiary protection application and the decision to make a deportation order. The decisions of ORAC and the RAT stand unchallenged. 8. The applicant, who was a lawyer in Nigeria, claims to have been a member of the Movement for the Actualisation of the Sovereign State of Biafra (“MASSOB”). MASSOB is a secessionist movement, which aims to establish a separate country forthe Igbo people of south-eastern Nigeria. The Nigerian government is strongly opposed to MASSOB. Several members of the organisation have been arrested and detained for months, despite MASSOB’s insistence that it is a peaceful organisation. The applicant claims that he acted as a legal advisor to MASSOB. 9. As a result of his involvement in MASSOB, the applicant claims to have come to the attention of the Nigerian authorities and claims to have been arrested in December, 2005. Subsequent to this, the applicant moved from Delta State to Lagos where he worked as a lawyer. He only returned to Delta State to carry out MASSOB activities. He also stated that he provided legal representation for MASSOB members. On 25th February, 2006, the applicant travelled from Lagos to Onithsa, Anambra State, to attend a MASSOB regional meeting, accompanied by officials from Delta State. That night, the applicant claims to have been attacked while sleeping in his bedroom. He heard a loud bang at his window, and heard people shouting “wake up, open the door!” The applicant escaped through the kitchen window but he was shot in the leg when attempting to jump across a garden fence. He was taken to hospital where he spent several months recovering from his injuries. During this time, the applicant stated that anonymous telephone calls were made to his law office stating that the gunshot wound “served him right.” 10. The applicant believes that this attack was state sponsored. He gives a number reasons for this. First, he states that there was money and valuables in his house on the night of the attack, but these were not taken. Second, his house is a basic four-bedroombungalow and there are better houses in the neighbourhood. Third, the applicant asserted that his only activities in Delta State were MASSOB related; that the government clamped down on MASSOB at this time, and that there were attacks on other MASSOB members in the region. Fourth, the applicant said that files relating to MASSOB were removed from his house - he had two MASSOB court cases pending at the time. For these reasons the applicant believes that the Nigerian government is behind this attack, as part of their clampdown on MASSOB activities. 11. Subsequent to his discharge from hospital in July 2006, the applicant claims that MASSOB intelligence sources informed him that he was not safe in Nigeria. He stayed in Onitsha from August to September 2006. He decided to leave Nigeria when the threats against him became more constant and MASSOB intelligence advised him that it was unwise for him to remain in the country. He contacted the leader of his church in Lagos who helped to organise his journey to Ireland. He travelled by air to Ghana, Amsterdam, and Belfast; he then travelled to Dublin by car, where he arrived on 4th December, 2006. 12. In his subsidiary protection application, the applicant claimed that his injury required further treatment, and that this would be hampered if he was returned to Nigeria. He also stated that if returned to Nigeria he will be killed. On his subsidiary protection application form, the applicant indicated that the basis on which “serious harm”, as defined in Article 15 of Council Directive 2004/83/EC of 29th April, 2004,(“the Qualification Directive”), and transposed in Regulation 2(1) of the Eligibility for Protection Regulations, 2006 (S.I. 518/2006) (“the Protection Regulations”), was being claimed, was as follows:
(ii) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (Article 15(c)). The applicant’s case
(ii) That even if the Minister did address the correct question, no reasons, or insufficient reasons, were given for his decision. (iii) That the Minister did not have sufficient grounds to reject the applicant’s credibility and that the Minister failed to identify the part of the applicant’s story unsupported by documentary evidence. (iv) That there cannot be a valid deportation order in the absence of a lawful determination of the subsidiary protection application; if the subsidiary protection decision falls, so too must the deportation order. 15. Article 15 of the Qualification Directive provides that “serious harm” consists of:-
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
(1) no substantial part of an applicant’s country of origin is capable of providing them reasonable protection, through police and criminal justice services, from a real risk of suffering serious harm, or worse, through human action arising from international or internal armed conflict; (2) a substantial territory within the country of origin can provide an applicant with a haven, despite international or internal armed conflict, against a real risk of suffering serious harm, or worse, through human action, either under the control of the country of origin, or another country, or of an international organisation, but the conditions in that place are so serious from the point of view of resort to police and criminal justice protection, or from animminent risk of international or civil war, that having regard to the personal circumstances of the applicant, he or she cannot reasonably have been expected to relocate there before applying for international protection or cannot reasonably now be returned there; (3) an applicant is likely to suffer a real risk of being executed other than in accordance with due process of law in respect of a crime which is not internationally recognised as being so serious as to be responsibly considered as allowing for imposition of the death penalty, discounting, as I am obliged to, Ireland’s opposition to that punishment on the basis of its obligations to implement European law; (4) an applicant is likely to suffer a real risk of torture or inhuman or degrading treatment at the hands of his or her country of origin authorities or, if the apprehended harm comes from a non-State source, then (1) or (2) above applies or the situation in the country lacks any reasonably functioning police and criminal justice protection and no haven as in (2). 18. Instead, the focus of the applicant’s attack on the subsidiary protection decision is that it fails to consider the Article 15(b) ground on which serious harm is alleged, namely, “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin.” It is clear that this ground does not require the serious harm to arise in a situation of armed conflict. As Charleton J held in F.N. v. Minister for Justice, Equality and Law Reform & Ors [2009] 1 IR 88, subsidiary protection may be available in circumstances where “an applicant is likely to suffer a real risk of torture or inhuman or degrading treatment at the hands of his or her country of origin authorities...” The applicant’s claim under this heading is that he has suffered a gunshot wound, perpetrated by the Nigerian authorities, in response to his MASSOB activities; and he fears further such attacks on his person if deported. The applicant submitted the subsidiary protection report does not address this issue. The Subsidiary Protection Report
21. The report went on to note that “the applicant’s claim for subsidiary protection centres on his fear of suffering serious harm at the hands of State agents due to his involvement with MASSOB.” This seems to be the Article 15(b) assessment. The report then proceeded to an “assessment of facts and circumstances”. This consists of extensive quotations from country of origin information concerning: (i) MASSOB; (ii) the Nigerian security forces; (iii) avenues of complaint about police misconduct; (iv) freedom of political expression; (v) freedom of association and assembly; and (vi) a medical issues overview. At the end of this section, the report commented:-
23. The subsidiary protection report then concluded as follows:
25. It seems to me that, in the course of her consideration of the country of origin information, the decision maker lost sight of the original question and became side-tracked by the health care information. Whatever the explanation, the decision maker ended up answering a different and indeed irrelevant question regarding health care in Nigeria, and completely failed to address the question that was relevant to the applicant’s Article 15(b) claim. I am satisfied that the applicant is entitled to an order of certiorari on this account. 26. In the next section of the report the Minister considers Article 15(c). In doing so, the report examines whether a situation of armed conflict exists in Nigeria. In light of the country of origin information, the Minister concludes that such a situation does not exist. The report then concludes as follows:-
28. The respondent submitted that for the purpose of a subsidiary protection application an applicant must show serious harm within a particular context or contexts. The respondent further argued that the applicant had not explained how the facts as alleged would bring him within the ambit of the Article 15(b) category of serious harm. The respondent stated that no authority had been cited in relation to whether the facts as alleged would constitute torture or inhuman or degrading treatment or punishment. The respondent submitted that there simply is no authority to suggest that the factual matrix alleged in these proceedings comes within the subsidiary protection category relied upon. The respondent submitted that a glance at the textbooks on this area supports his view - examples of the type of harm covered by Article 15(b), he said, included corporal punishment. This, counsel submitted, is not such a case. Counsel stated that if the applicant was correct in his submission that all that was needed to succeed in a subsidiary protection application was serious harm, then there may be a chance of success. However, the respondent submitted that it is in fact serious harm defined within a particular context that is needed for an entitlement to subsidiary protection to arise. 29. It seems to me that the respondent’s submissions in this regard are misconceived. The terms of Article 15(b), and Charleton J.’s judgment in F.N., both support the view that the harm arising under Article 15(b) need not occur in a particular context; the particular context requirement only seems to arise under Article 15(c). All that is required for the purposes of Article 15(b) is that the applicant be likely to suffer a real risk of torture or inhuman or degrading treatment at the hands of his or her country of origin authorities if returned. 30. The respondent argued that being shot or the threat of being shot is not such as to come within the definition of “torture or inhuman or degrading treatment or punishment”. However, the court notes that the jurisprudence of the Court of Justice of the European Union (“the CJEU”) states that Article 15(b) is the equivalent of Article 3 of the European Convention on Human Rights. Article 3 ECHR provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In Elgafaji v. Staatssecretaris van Justitie (C 465/07) the CJEU held, at para. 28 of its judgment:
"31. In order to reply to those questions, it is appropriate to compare the three types of 'serious harm' defined in Article 15 of the Directive, which constitute the qualification for subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces 'a real risk of [such] harm' if returned to the relevant country. 32. In that regard, it must be noted that the terms 'death penalty', 'execution' and ' torture or inhuman or degrading treatment or punishment of an applicant in the country of origin', used in Article 15(a) and (b) of the Directive, covers situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. 33. By contrast, the harm defined in Article 15(c) of the Directive as consisting of a 'serious and individual threat to [the applicant's] life or person' covers a more general risk of harm. 34. Reference is made, more generally, to a 'threat ... to a civilian's life or person' rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of 'international or internal armed conflict'. Lastly, the violence in question which gives rise to that threat is described as 'indiscriminate', a term which implies that it may extend to people irrespective of their personal circumstances. 35. In that context, the word 'individual' must be understood as covering harm to civilians irrespective of their identity, by the degree of indiscriminate violence characterising the armed conflict taking place - assessed by the competent national authorities before which an application for subsidiary protection is made, or by the court of a Member State to which a decision refusing such an application is referred - reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred to in Article 15(C) of the Directive." The Court, at paragraph 38 of its judgment, noted that the harm defined in Article 15(a) and (b) "requires a clear degree of individualisation". Article 2 (e) of the Qualification Directive prescribes eligibility for subsidiary protection. In addition to demonstrating a real risk of suffering serious harm (as defined in Article 15) the applicant must establish that he or she “is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”.
88. That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision...” 34. Despite having failed to consider the central aspect of the applicant’s case, the Minister nevertheless found that there were no substantial grounds for concluding that the applicant would be at risk of serious harm in the nature of “torture or inhuman or degrading treatment” if returned to Nigeria. The Minister reached this conclusion without explaining his rationale or providing reasons. I am of opinion that this was in breach of the principle enunciated by Murray C.J. in Meadows v. Minister for Justice [2010] 2 IR 701, at paras. 93-95 of his judgment, where he stated:-
94. Unless that is so then the constitutional right to access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective. 95. In my view the decision of the first respondent in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced.” Credibility Findings and Documentary Evidence
‘I have considered all of the documentation, country of origin information, written submissions, submissions, grounds of appeal and case law relied on in respect of this applicant’s claim. This information does not assist the applicant in circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not believed.’ Because of the doubt surrounding his credibility, the applicant does not warrant the benefit of the doubt.” 38. In reply, the respondent submitted that the adverse credibility findings at the asylum stage had never been the subject of judicial review. He added that while the subsidiary protection report refers to these findings and takes the view that the applicant does not warrant the benefit of the doubt, nothing actually turned on that finding. The respondent submitted that the issue of credibility was not relevant to the Minister’s consideration of the Article 15(b) category of serious harm. The respondent stated that the credibility issue did not impact on the torture or inhuman and degrading treatment or punishment assessment. Counsel for the respondent further submitted that the applicant had not shown how the adverse credibility finding had affected the Minister’s consideration of the subsidiary protection application. 39. In E. D-N &Ors. v. Minister for Justice and Equality [2013] IEHC 447, Mac Eochaidh J. was confronted with a situation where the Minister’s assessment of the applicant’s credibility for the purposes of a subsidiary protection application was based entirely on the RAT’s adverse credibility findings. In considering this issue, Mac Eochaidh J. accepted that he was bound by M.M. He then held as follows at para. 36 of his decision:-
“46. In these circumstances, in the light of the guidance given by the Court of Justice on the reference, I must hold that the Minister failed to afford the applicant and effective hearing at subsidiary protection stage, precisely because he relied completely on the adverse credibility findings which had been made by the Tribunal…and because he made no independent and separate adjudication on these claims. 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."
42. With regard to the Minister’s evaluation of the documentary evidence, the applicant submitted that it made no sense for the Minister to apply Reg. 5(3), which he purports to have done when assessing the applicant’s credibility, without reference to the particular parts of the applicant’s claim not supported by documentary evidence. The applicant stated thatthe subsidiary protection decisiondoes not make any reference to the documentation that the applicant submitted to ORAC and the RAT. This included a MASSOB identity card, as well as corroborating evidence regarding the applicant’s identity, his career, his travel, and his family. The applicant said that the Minister failed to acknowledge that the medical evidence he had submitted supported his account of having been shot. 43. The applicant submitted that there had been a complete failure by the decision maker to consider the representations made and to arrive at a reasoned decision on foot thereof, and also to apply the rules for assessment of applications under the European Communities (Eligibility for Protection) Regulations 2006. 44. In support of his submission, the applicant referred the court to the judgment of Mac Eochaidh J. in Barua v. Minister for Justice and Equality [2012] IEHC 456, where the learned judge stated as follows:-
"Where aspects of the protection applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met …" Regulation 5(3) appears to be addressed to circumstances where part of the applicant's story is not supported by documentary evidence. At no stage does the author attempt to identify which part of the applicant's story is unsupported by documentary evidence, and having done so, how the credibility of the applicant's tale is then to be assessed. It is clear to me that such part of the report which is said to address the requirements of Regulation 5(3) fails so to do. This failure is closely related to the principal complaint- indeed, the only complaint - in respect of which the applicant was granted leave to seek judicial review. That complaint, simply put, is that there was a failure by the decision maker to address all of the documents which have been submitted to the Minister's officials in respect of the claim for subsidiary protection. It is recalled that the same suite of documentation accompanied the two-stage asylum application and the subsidiary protection application, together with the leave to remain application. It is a startling feature of this case that this documentation was not referenced, even casually, by the decision maker. Not every document submitted needs separate and microscopic examination. However, in a case such as this, where the documentary evidence is apparently corroborative of the applicant's story, this is an issue which the decision maker ought to address.”
27. As noted above, if documents which are prima facie corroborative of an applicant's account of relevant events are to be discounted, dismissed or rejected, or somehow found not to have corroborative effect, it is incumbent on the decision maker to explain why. There maybe overwhelming reasons, unrelated to the documentation, to reject the credibility of an applicant but if this is so, then the decision maker should say that and should clearly state the basis on which documentation which seemingly supports the applicant's story is discounted , rejected or dismissed. An objective outsider, such as this court, is left guessing why the applicant's documents submitted in support of the claim did not appear to have that effect. The references in the impugned decision to the prevalence of forged and fraudulently obtained documents in Bangladesh leads one to conclude that this is what the decision makers actually believed of some or maybe all of the applicant's supporting papers. That is a matter which ought to have been put to the applicant, or at the very least, an express finding in that regard should have been made and the basis of that finding should have been stated. Documents which prima facie support the applicant's story deserve comment and this is especially so when marginal credibility findings are relied upon by a decision maker to dismiss an applicant's story and refuse protection. (I note that the Tribunal stated that the applicant was fleeing prosecution, not persecution. Such a finding implies that the Tribunal accepted the authenticity of certain documents relating to activities of the courts and the police, but one is left guessing as to what the references to forgeries were about). 28. Statutory rules and case law direct the manner in which documents must be treated: see Regulation 5 (1) (b) of the European Communities (Eligibility for Protection) Regulations 2006. As for case law, in IR v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, paragraph 11, Cooke J lays out ten principles for the treatment of evidence which goes to credibility. The ninth principle reads as follows: "Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated." The tenth principle states, "Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached." 29. It is clear that the decision maker did not follow these principles. The decision furnished by the respondent did not allude to any reasons for the absence of weight attributed to the documentation furnished by the applicant. The decision does not explain why the documentation's corroborative effect was dismissed, discounted or rejected.” Deportation order 48. Accordingly, as I have determined that the subsidiary protection decision was not validly made and must be struck down, and remitted to the Minister for reconsideration, it follows that the deportation order in respect of the applicant cannot be permitted to stand. In these circumstances, it is appropriate to quash the deportation order and remit the issue to the Minister for reconsideration along with the subsidiary protection decision. Conclusion |
