Ireland - High Court, 23 March 2013, Ninga Mbi v Minister for Justice and Equality & Ors, [2012] IEHC 125

Facts:

The Applicant had been refused a grant of refugee status and had then applied to the Minister for subsidiary protection and leave to remain. The application relied on substantially the same facts as the application for refugee status and, in his decision, the Minister relied on the adverse credibility findings and evaluation of medical evidence during that process. It was claimed that there was a deficiency in the RAT decision by reason of their being almost one year between the time of the hearing and the issuing of that decision. This Applicant sought judicial review of the Minister’s decision to refuse subsidiary protection and to issue a deportation order against the Applicant.

Decision & reasoning:

Relying on the decision of Dbisi [sic] (aka N.D.) v MJELR [2012] IEHC 44, the Court held that, where the same facts are relied on in the subsidiary protection application as in the claim for refugee status, the Minister is entitled to, and must, have regard to the asylum decisions, in particular on credibility. The Minister is not obliged to reopen or reinvestigate the asylum decision. The Minister cannot be successfully challenged in this regard unless his reasoning is defective. In the context of the medical report, the Court stated that “If the RAT was legally wrong in relation to its use of the medical evidence and if the Minister was similarly wrong then the Minister’s decision can be and should be open to judicial review.” In the view of the Court, this reasoning reconciles the decisions in H.M. v MJLR [2012] IEHC 176 and Dbisi v MJELR.

The Court held that officious or anxious scrutiny forms no part of Irish law as reaffirmed in Meadows v MJELR [2010] IESC 3, as it is would be a breach of the separation of powers.

The Applicant contended that the application for subsidiary protection was made “without prejudice” to the outcome of the decision of the CJEU in H.I.D. and therefore the Minister should have communicated with the Applicant prior to making his decision so that the Applicant could have furnished any new information in his possession. The Court rejected this argument, stating that Applicant is not entitled to prevent the Minister from making his decision and the Applicant had not demonstrated possession of any such new information.

The Applicant argued the Minister’s decision was irrational, among other things, in relation to the finding that the level of violence in the DRC does not amount to an internal or international armed conflict and therefore the Applicant did not run a real risk of serious and individual threat by reason of indiscriminate violence in situations of armed conflict. The Court rejected these arguments, noting, for example, that the decision flowed from the Minister’s consideration of country of origin information.

The Applicant criticised the credibility findings, arguing that they were based largely on demeanour yet there was a substantial delay of approximately one year between the oral hearing and the date of the decision. While the Court agreed that there was a substantial “and indeed inordinate” delay, even where credibility decisions by the RAT are based on demeanour, the decision-maker will invariably have taken notes and his decision will not and must not arise out of a process that tends to recall demeanour after an extensive lapse of time. In this case however, the Court found that the credibility findings had not been based primarily on demeanour and, in addition, that the findings of the RAT had not been challenged in the application for subsidiary protection. In that light, the Applicant “cannot in these proceedings collaterally attack the decision of the RAT which was unchallenged on this basis either by way of judicial review or submission.”

The RAT decision stated that it rejected the medical report submitted by the Applicant as corroborating evidence “for the reasons set out at A and B above”. The Court held that while “A and B above” did not contain any conclusions, “the probability is that the decision maker meant that he came (sic) his conclusions based on the credibility reasons set out at A to F above. In any event, the error in relation to “A and B” is a small one and is not material.” Further, there was nothing to suggest that the nature of the findings in the medical report did anything other than not negate the Applicant’s claim.

Outcome:

The application seeking leave to judicially review was dismissed in its entirety.