Ireland - High Court, 25 June 2012, W.A. [DRC] v Minister for Justice and Equality, Ireland and the Attorney General, [2012] IEHC 251
| Country of Decision: | Ireland |
| Country of applicant: | Congo (DRC) |
| Court name: | High Court (Cooke J) |
| Date of decision: | 25-06-2012 |
| Citation: | [2012] IEHC 251 |
| Additional citation: | 2011 No. 734 J.R. |
Keywords:
| Keywords |
|
Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
|
Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
|
Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
|
Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
|
Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
|
Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
|
Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (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." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
|
Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
|
Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
|
Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
|
Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
Headnote:
This case concerned the assessment and reason given that the Applicant had not been subjected to “serious harm” in the past, in circumstances where the decision was unclear as to whether the finding was to the effect that his account was not believed, or whether, if believed, the harm was not inflicted by persons who were "actors of serious harm". The Court also considered the definition of “actors of serious harm.” Thirdly, the Court considered whether the decision-maker ignored the specific claim made in the application that returned asylum seekers face a risk of detention, interrogation and torture such as would amount to "serious harm".
Facts:
The Applicant applied for asylum and subsidiary protection based upon his membership of, and activities associated with, the MLC in DR Congo. In particular he claimed that he was arrested and detained, interrogated and tortured for two and a half years in a prison camp because of his involvement in a protest in March 2007 following the refusal of the incumbent President Bemba to concede the election. It was also claimed that returned asylum seekers were at risk of serious harm in DR Congo. The decision-maker in the challenged decision found that the Applicant was not at risk of State sanction by way of imprisonment on foot of his political beliefs on the basis firstly that his account was found to have lacked credibility, and secondly, because the political conditions had changed. It was also held that the Applicant had not suffered “serious harm” because the harm claimed was required to have been carried out by “actors of serious harm” in order to meet that definition, and no evidence was found that this was the case. No reference was made in the challenged decision to the submission that the Applicant was at risk of serious harm as a returned asylum seeker.
Decision & reasoning:
The Applicant had relied on thirteen grounds to challenge the subsidiary protection decision and the subsequent deportation order. However, because many of those grounds had already been the subject of decisions of the High Court of Ireland before this case came on for hearing, nine of the grounds were disposed of summarily and in the negative by the Court.
By way of preliminary observation, the Court accepted that the Minister may use a system of standardisation to ensure efficient, thorough and consistent decision-making, but warned of the dangers of decision-makers relying on a system to the detriment of their obligation to adequately address the details of the specific case being made to them.
The subsidiary protection decision found that the Applicant was not at risk of State sanction by way of imprisonment on foot of his political beliefs on the basis firstly that his account was found to have lacked credibility in his asylum claim, and secondly because the political conditions had changed to the effect that the MLC were politically stronger and that more legal protections could be accessed. The Applicant challenged the reasonableness of this finding, but the Court held that the finding was legally sound.
The subsidiary protection decision also set out that non-State actors can only be considered to be actors of serious harm if it can be demonstrated that the State, or those controlling the relevant portion of it, are unable or unwilling to offer protection, and that the Applicant had not shown that this was the case. The decision-maker stated that they could not find any evidence that the Applicant had suffered treatment in DR Congo which came within the definition of “serious harm.” The Applicant was granted permission to seek judicial review of this finding on the basis that it was arguable that the decision-maker erred in the assessment made of, and the reason given for, concluding that the Applicant had not been subjected to “serious harm” in the past in circumstances where the decision was unclear as to whether the finding was to the effect that his account of imprisonment and torture was not believed, or whether, if believed, it was not inflicted by persons who were "actors of serious harm". The Court accepted that the definition of “actors of serious harm” as part of the definition of “serious harm” was appropriate, but that the logical connection between the definition and the finding in the case was not clear.
Permission to seek judicial review was also granted on the basis that it was arguable that the determination could be said to have ignored the specific claim made in the application that, based on country of origin information as cited, returned asylum seekers face a risk of detention, interrogation and torture such as would amount to "serious harm".
Thirdly, permission was given to seek judicial review of the Deportation Order issued against the Applicant on the basis that it would be unlawful in the absence of a previous, valid decision having been made on his application for subsidiary protection.
Outcome:
Leave to seek judicial review of the subsidiary protection decision was granted on two grounds, and leave to seek judicial review of the deportation order was also granted as it would not be valid if the subsidiary protection decision was not also valid.
Observations/comments:
The paragraph at issue in this decision which refers to previous “serious harm” being defined by it having been inflicted by “actors of serious harm,” was upheld as correct in law in this decision (the nexus between the definition and the conclusion reached being the true issue). However, while the court noted that the case of J.T.M v Minister for Justice and Equality [2012] IEHC 99, adverted to a query over this issue, it did not explicitly note that the conclusion that this Court made was the opposite of the conclusion reached in that case. The facts of the J.T.M. case differed considerably to those before the Court, as did the effect of impugned definition. The differences in the two cases were noted in the subsequent case of N.N. [Cameroon] v Minister for Justice and Equality & Ors. [2012] IEHC 499 – where the definition in W.A. [DRC] was preferred.
Other sources:
Hathaway, The Law of Refugee Status (Butterworths, 1991) p.133.
McAdam, "Complementary Protection in International Refugee Law" (Oxford University Press, 2007) p. 20